                                           RENDERED : DECEMBER 16, 2010
                                                        TO BE PUBLISHED

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                             2008-SC-000811-MR

                                                                                  v

ZELNAR TRAVIS                                                       APPELLANT


              ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.             HONORABLE GEOFFREY P. MORRIS, JUDGE
                          NO . 07-CR-003360


COMMONWEALTH OF KENTUCKY                                             APPELLEE


AND                          2008-SC-000831-MR


WILLIAM DAWSON                                                      APPELLANT


               ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.              HONORABLE GEOFFREY P. MORRIS, JUDGE
                           NO . 07-CR-003360


COMMONWEALTH OF KENTUCKY                                              APPELLEE


               OPINION OF THE COURT BY JUSTICE NOBLE

       AFFIRMING IN PART~REVERSING IN PARTAND_REMANDING


      Appellants Zelnar Travis and William Dawson were both convicted of

robbery in the first-degree, possession of a handgun by a convicted felon,

possession of a defaced firearm, and being a persistent first-degree felony

offender . They were co-defendants and their appeals are being heard together .

They appeal their robbery convictions and the related court costs and fines, as
well as their convictions as persistent felony offenders. Finding reversible error

in the imposition of court costs and fines, we vacate those penalties, but

finding no reversible error in the robbery or persistent felony offender

instructions, we affirm their convictions and sentences.

                                 I. Background

      During the early morning hours of August 21, 2007, police received a call

about a man who was possibly hurt in downtown Louisville. When police

arrived on the scene, they realized that the individual, while not injured, had

been robbed at gunpoint in a nearby housing project. The victim, Timothy

Humphrey, was able to provide the officers with a detailed description of the

two men who had robbed him. Within an hour, officers had located the

Appellants near the robbery site. When the police found the two men, they

noticed a loaded, semi-automatic handgun in the grass next to a porch on

which they were sitting. The weapon was functional, but the serial number

had been scratched off.

       According to Humphrey, he was walking to a housing project when he

noticed Travis and Dawson stalking him. The two men eventually caught up

with him, put him on the ground, held a gun to his head, and searched him for

valuables . Humphrey stated that the robbers took his wallet and cell phone.

 At the end of the confrontation, Travis and Dawson walked away and told

 Humphrey to leave the housing project. When Travis and Dawson were later

 apprehended by police, Humphrey identified them as the individuals who

 robbed him.
      After a four-day trial, Travis was convicted of robbery in the first-degree,

possession of a handgun by a convicted felon, possession of a defaced firearm,

and being a first-degree persistent felony offender. 1 Travis was sentenced to 20

years on the robbery charge and 8 years on the possession of a firearm charge,

with those sentences to run concurrently for a total of 20 years, enhanced to

27 years by the PFO conviction . Dawson was convicted of robbery in the first-

degree, possession of a handgun by a convicted felon, possession of a defaced

firearm, and being a first-degree persistent felony offender . Dawson was

sentenced to 20 years on the robbery charge and 8 years on the possession of a

handgun charge, with those sentences to run consecutively for a total of 28

years, enhanced to 35 years by the PFO . The trial court additionally imposed

court costs in the amount of $130 and levied a "felony conviction fee" (or fine)

of $1000 apiece.

       Both Travis and Dawson appeal the final judgment entered as a matter of

right . Ky. Const. § 110(2)(b) . Their appeals have been consolidated for our

review, and each appeal raises a number of errors which we will address as

necessary.

                                     II. Analysis

                     A. Imposition of Fine and Court Costs

       The Appellants' first assignment of error is the trial court's imposition of

 court costs and fines. According to the Appellants, these fines were improper




 1 Both Travis and Dawson were also charged with, but ultimately acquitted of,
   criminal trespass in the second-degree.
because the trial court had already recognized their indigent status pursuant

to KRS Chapter 31 .

      Subsection (4) of KRS 534 .040 provides that "[fines required by this

section shall not be imposed upon any person determined by the court to be

indigent pursuant to KRS Chapter 31 ." Nor may court costs be levied upon

defendants found to be indigent. KRS 23A.205(2) . At the time of trial, both

Travis and Dawson were receiving the services of a public defender, and were

granted the right to appeal in forma pauperis. They were clearly indigent.

Thus, the trial court clearly erred in imposing a fine and court costs upon the

Appellants . See Simpson v. Commonwealth, 889 S .W .2d 781, 784 (Ky . 1994) .

      Travis and Dawson concede that this error is not preserved for appellate

review. "Nonetheless, since sentencing is jurisdictional it cannot be waived by

failure to object." Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985) .

"Thus, sentencing issues may be raised for the first time on appeal and

Appellant is proceeding properly before this Court." Cummings v.

 Commonwealth, 226 S .W.3d 62, 66 (Ky. 2007) . Fines and costs, being part of

the punishment imposed by the court, are part of the sentence imposed in a

 criminal case. Having the inherent jurisdiction to cure such sentencing errors,

 this Court vacates the fines and court costs .

                              B. Unanimous Verdict

       The Appellants contend that they were denied their rights to a

 unanimous verdict on both their first-degree robbery and persistent felony

 offender charges. 4n both counts, the Appellants' argument turns on an

 alleged defect in the instructions, which they claim deprived them of a
                                          4
unanimous verdict. Before turning to the instructions at issue in this

particular case, it is worthwhile to briefly outline the development of our law on

this sort of unanimous verdict issue, in light of the fact that these issues have

recently been appearing repeatedly .

      Toward the end of the 1970s, the Court began to tackle the situation

presented in this case, where multiple theories of a crime are presented in a

single instruction. See, e .g ., Wells v. Commonwealth, 561 S.W.2d 85, 88 (Ky.

1978) . Such an instruction has become known as a "combination instruction."

See, e.g., Johnson v. Commonwealth, 12 S .W.3d 258, 265 (Ky. 1999). Wells

held that "a verdict can not be successfully attacked upon the ground that the

jurors could have believed either of two theories of the case where both

interpretations are supported by the evidence and the proof of either beyond a

reasonable doubt constitutes the same offense ." 561 S.W.2d at 88 . In other

words, multiple theories of the same offense can be combined so long as there

is sufficient evidence of each. This is because, no matter which theory they

accepted, all the jurors convicted under a theory supported by the evidence

and all the jurors convicted the defendant of the same offense.

       This Court addressed the situation where there is insufficient evidence

supporting one of the theories in both Boulder v. Commonwealth, 610 S .W. 2d

615, 617 (Ky. 1980), and Hayes v. Commonwealth, 625 S.W.2d 583, 584-85

 (Ky. 1981) . In each case, the Court found the combined instruction erroneous

because it permitted the jury to convict on a theory unsupported by evidence.

 See Boulder, 610 S.W.2d at 617 ("They provided alternative grounds for a

 finding of guilt-either that John intended to cause serious physical injury to
                                         5
`Cynthia' or that he was wantonly engaging in conduct which created a risk of

death to `Cynthia.' The state of the evidence, however, is such that it would be

clearly unreasonable for a juror to believe that John's conduct was other than

intentional.") ; Hayes, 625 S.W.2d at 585 .

                            1 . Robbery Instructions

      With respect to their convictions for first-degree robbery, Travis and

Dawson argue that they were denied a unanimous verdict because the

instruction permitted a conviction on a theory of robbery not supported by the

evidence . The instructions to which Travis and Dawson take issue are the

following:

             You will find the defendant, Zelnar Travis [William
             Dawson], guilty of Robbery in the First Degree under
             this Instruction if, and only if, you believe from the
             evidence beyond a reasonable doubt, all of the
             following:

                   (A) That in Jefferson County on or about August
             21, 2007 Zelnar Travis and/or William Dawson, acting
             alone or in complicity with one another, stole or
             attempted to steal property from Timothy Humphrey ;

                    AND

                    (B) That in the course of so doing and with
             intent to accomplish the theft, he and/or William
             Dawson used or threatened the immediate use of
             physical force upon Timothy Humphrey;

                    AND

                   (C) That in the course of the foregoing Zelnar
             Travis and/or William Dawson were armed with a
             deadly weapon-.45 caliber semiautomatic handgun.

       Specifically, Travis and Dawson point to the language stating that they

 "attempted to steal property from Timothy Humphrey," found in part (A) of the
                                          6
instruction. According to both Appellants, the evidence introduced at trial was

only that of a completed theft . Therefore, the Appellants contend, allowing the

jury to convict them on a theory unsupported by the evidence violated their

rights to a unanimous verdict.

       The instruction provided to the jury tracks the first-degree robbery

statute, detailing the two ways to satisfy the "in the course of committing theft"

portion of the statute: stealing property or attempting to steal property. See

KRS 515 .020 . As long as the jury finds from the evidence that Travis and

Dawson either "stole" or "attempted to steal" property from Humphrey, it is not

critical as to which one to find them guilty . of first-degree robbery. Wade v.

Commonwealth, 724 S.W .2d 207, 208 (Ky. 1986) . A defendant who uses

physical force with the requisite intent is guilty of robbery regardless of

whether any of the property intended to be taken is in fact taken. Kirkland v.

Commonwealth, 53 S .W .3d 71, 76 (Ky. 2001) ("All the evidence indicates that

McKee and Kirkland entered the store with a gun in order to steal money from

the victim . The robbery was accomplished at this point.") . This reflects a

change in the law with the adoption of the Penal Code in 1974, which "ma[de]

an important change in the traditional robbery offense," KRS 515 .020 cmt., by

 shifting the focus from the theft to the force or threat of force aspect of the

 crime . "With this change, robbery, as an offense against the person, is

 emphasized while robbery, as an offense against property, is de-emphasized ."

 Id.

       The language "in the course of committing theft" thus allows the

 Commonwealth to prove either that a theft was committed or attempted, based
                                           7
on which act the evidence supports. Theft or attempted theft is the action

necessary to make the offense a robbery rather than an assault, and in this

manner is an "element" of the offense of robbery rather than a separate offense.

The "in the course of" language takes the emphasis in robbery from the

property itself, and focuses on actions against a person.

      This Court can discern no error by the inclusion of "attempt" language in

the jury instructions. There was no evidence or argument that the Appellants

did not take Humphrey's wallet and cell phone .          The "theory" of robbery

through completion of the theft necessarily encompasses the theory that the

Appellants attempted the theft as well. This principle is reflected in how, for

purposes of double jeopardy, an attempted theft merges with the completed

offense . "A person may not be convicted on the basis of the same course of

conduct of both the actual commission of a crime and . . . [a] criminal attempt

to commit that crime. . . ." KRS 506 .110(1) 10(1)(a)
                                             . The substantive offense is

simply a successfully completed attempt.

      Logically, then, all the evidence pertaining to the Appellants' actual

taking of property is sufficient   to   establish their attempt to do so . It is the case,

a fortiori, that having proved that the wallet and cell phone were taken, the

Commonwealth also proved the attempt to take them. It is disingenuous to

argue that having proved that the property was taken, any member of the jury

could possibly instead think that only an attempt to take the property had

 occurred . But even if some member of the jury did believe such, that belief was

 sufficient to convict for robbery, even though some of the jurors may have

 believed there was an actual taking rather than an attempt. Either way, and
                                              8
even with a mixed finding on the taking element, the jury found that the

Appellants were guilty of first-degree robbery beyond a reasonable doubt, and

there was no lack of unanimity, as either theft or attempted theft satisfies the

robbery statute, and the evidence here was sufficient to prove both.

                               2. PFO Instructions

      For their final assignment of error, Appellants argue that the first-degree

persistent felony offender instruction permitted a conviction on a theory

unsupported by the evidence. Specifically, Appellants contend that the

Commonwealth failed to produce evidence to support theories set forth in parts

five, six, and seven of the jury instructions, in violation of the rule that a

criminal conviction must be by a unanimous verdict. At the time the

instructions were tendered to the jury, neither Travis nor Dawson made a

timely objection. RCr 9 .54(2) . Since no objection was made to the instructions,

the issue of their appropriateness is unpreserved on appeal . See Hopper v.

Commonwealth, 516 S .W.2d 855, 857 (Ky. 1974) .

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

             You will find the defendant, Zelnar Travis, guilty of
             being a persistent felony offender in the First Degree
             under this Instruction if, and only if, you believe from
             the evidence beyond a reasonable doubt the following:

                   (1) That prior to August 21, 2007 the Defendant
             was previously convicted of at least two (2) of the
             following felony convictions: Theft by Unlawful Taking
             over $300 by judgment of the Jefferson Circuit Court
             dated March 1, 1999 ; Possession of a Handgun by a
             Convicted Felon by judgment of the Jefferson Circuit
             Court dated April 19, 2005.
                  (2) That pursuant to at least two (2) of those
           prior convictions, he was sentenced to a term of
           imprisonment of one year or more on each ;

           AND

                 (3) That he was 18 years of age or older when he
           committed at least two (2) of the offenses for which he
           was so convicted;

           AND

                 (4) That the defendant is now more than 21
           years of age;

            AND

                  (S) That the defendant completed service of the
            sentence imposed on at least one of the previous felony
            convictions within five years prior to the date of the
            commission of the offenses charged in this indictment ;

            OR

                  (6) That the defendant was on a form of legal
            release from at least one of the previous felony
            convictions on the date of the commission of the
            offenses charged in this indictment;

            OR

                  (7) That the defendant was legally released or
            discharged from at least one of the previous felony
            convictions within five years of the date of the
            commission of the offenses charged in this indictment .

The PFO instruction given for William Dawson was identical to the instruction

given to Zelnar Travis, except that paragraph (1) stated:

            That prior to August 21, 2007 the Defendant was
            previously convicted of at least two (2) of the following
            felony convictions: Possession of a Handgun by a
            Convicted Felon by judgment of the Jefferson Circuit
            Court dated July 20, 2001 ; Escape in the Second
            Degree by judgment of the Jefferson Circuit Court
            dated August 18, 2004 ; Illegal Possession of a
                                        10
            Controlled Substance in the First Degree by judgment
            of the Jefferson Circuit Court dated September 27,
            2004 .

      Both instructions contain superfluous language. In other words, they

contain language describing theories of liability that do not relate to any

evidence presented or even alluded to at trial. Instead of serving to aid the

jury, such language was simply inserted to reflect the various possible theories

of statutory liability, notwithstanding their inapplicability to the instant case.

      Specifically, in regard to Travis, the record shows that the

Commonwealth failed to produce any evidence to show that he had completed

serving his sentence or was legally released or discharged within five years of

the underlying robbery . In fact, in most cases, such proof would be impossible,

as the time periods laid out by the PFO categories rarely overlap. A person may

have completed service of a sentence or have been legally released or

discharged (i.e. on probation or parole) within five years of the current offense,

or have actually been on probation or parole at the time of the offense, but

rarely would more than one category apply. And in this case, there certainly

was no evidence that more than one of the categories applied to Appellant.

Therefore, the inclusion of parts five and seven in the instruction was

superfluous and in error.

       In regards to Dawson, the record indicates that the Commonwealth failed

to produce evidence to support that he was on some form of legal release at the

 time of the underlying robbery, or that he was legally released or discharged

within five years of the charged offense . Accordingly, the inclusion of parts six

and seven was in error as applied to him . Id.
                                          11
      As noted above, Boulder and Hayes established that such superfluous

instructing on theories insufficiently supported by evidence is error. Twenty

years after that pair of cases, this Court held in Burnett v. Commonwealth, 31

S.W.3d 878, 883 (Ky. 2000), that when this type of error is preserved, it must

always cause the conviction to be reversed. Burnett's reasoning was based on

the fundamental nature of one's right to a unanimous verdict.

      While holding true to that underlying principle, we now step back from

our position in Burnett because the error resulting only from superfluous

language does not present a pure unanimity problem. On the contrary, such

flawed instructions only implicate unanimity if it is reasonably likely that some

members of the jury actually followed the erroneously inserted theory in

reaching their verdict. If that can be shown, then a unanimous verdict has

been denied and the verdict must be overruled. However, if there is no

reasonable possibility that the jury actually relied on the erroneous theory-in

particular, where there is no evidence of the theory that could mislead the

jury-then there is no unanimity problem. Though such a case presents an

error in the instructions, namely, the inclusion of surplus language, the error

is simply harmless because there is no reason to think the jury was misled. To

the extent Burnett mandates reversal in this latter situation, it is now

overruled.

      Turning back to the case at hand, there was absolutely no evidence to

support the two erroneous theories in Travis's and Dawson's PFO instructions .

Thus, there was no reason at all for any juror to convict either of them as a

PFO under those erroneous theories. To do so would have been utterly
                                        12
irrational . As such, there is no real possibility that jurors followed one of the

theories presented by the surplus language and, as a result, no real possibility

that a unanimous verdict was denied . Thus, even if these instructional errors

had been properly preserved for review, they would likely be deemed harmless .

Having not been preserved, and subject only to palpable error review, reversal

is certainly not warranted under that higher threshold.

                                     III. Conclusion

       The judgment of the Jefferson Circuit Court is hereby affirmed as to both

Appellants' convictions for first-degree robbery and as persistent felony

offenders, but reversed as to the portion thereof imposing fines and remanded

for an entry of judgment consistent with this opinion.

       Cunningham, Scott and Venters, JJ ., concur . Minton, C .J ., concurs in

result only by separate opinion. Abramson, J., concurs in result only by

separate opinion. Schroder, J., concurs in result only.

       MINTON, C.J., CONCURRING IN RESULT ONLY: I agree with the

majority that the error in this case is not sufficiently egregious to rise to the

level of being a palpable error. But I believe the majority goes afield by

concluding that this type of surplus language in an instruction would be

harmless error if it had been properly preserved . Obviously, that conclusion is

dicta because the jury instruction issue in question clearly was not preserved

for review. Unfortunately, the majority relies upon that dicta to overrule

Burnett, 2 a decision that would mandate reversal if this type of issue were

properly preserved. Maybe Bumett should be re-examined, but this is not the

    Burnett v. Commonwealth, 31 S .W.3d 878 (Ky.,2000) .
                                             13
case for it. Simply put, Burnett's viability is not squarely before us; and I am

reluctant to use dicta to overrule precedent.

      By overruling Bumett, the majority ostensibly has concluded that lay

jurors would always be wise enough to ignore any superfluous instruction the

judge might give. It appears to me that such a conclusion rests upon the

dubious proposition that lay jurors have a greater degree of discernment about

the evidence presented at trial than do the judges who draw the instructions .

After all, an instruction deemed superfluous by the appellate court would not

have been submitted to the jury unless the trial judge believed the instruction

was necessary and proper. So I am unable to join the majority's view that a lay

juror .- mindful of their oath to follow both the evidence and the law as given

to them by the trial court - could identify a superfluous instruction and

disregard it.

      In addition to being unnecessary to the resolution of the case at hand,

the majority's mixing the language of harmless error analysis into this case

runs afoul of Martin v. Commonwealth, 207 S .W .3d 1 (Ky. 2007) . The majority

in Martin exhorts appellate courts to "endeavor to avoid mixing the concepts of

palpable error and harmless error. One is not the opposite of the other."

Id. at 5. I fear we have failed to follow our own advice by injecting the concept

of harmless error into this palpable error case.

      Finally, neither a party nor a judge can invade the sanctity of the jury

room to determine what arguments or theories any individual juror relied upon

in rendering a verdict. So I believe the majority requires an Appellant to

complete an insuperable task when it holds that an extraneous instruction can
                                        14
only be palpable error if an Appellant can show that "it is reasonably likely that

some members of the jury actually followed the erroneously inserted theory in

reaching their verdict." Slip opinion, p. 12 . In practical terms, I believe the

majority opinion will stand for the proposition that an Appellant will not be

entitled to palpable error relief if he or she fails to object timely to a

superfluous instruction, such as the one at hand. Instead of requiring the

impossible from Appellants, I would prefer to analyze these types of cases

under our traditional, well-settled standards for conducting palpable error

review.

        Since I do not believe Burnett's viability is necessarily at stake in this

case and because I do not believe we should gratuitously address what relief, if

any, Travis and Dawson would be entitled to receive if they had properly

preserved this unanimity issue, I only concur with the majority's conclusion

that the instructional errors did not rise to the level of palpable error in this

case. I do not join the majority's overruling of Burnett. Because I cannot

subscribe to all aspects of the majority opinion, I respectfully concur in result

only.

        ABRAMSON, J ., CONCURRING : I concur with Justice Noble's cogent

 analysis but write separately to explain some of my own conclusions about so-

 called unanimous verdict cases involving superfluous or overly broad language

 in the jury instructions . Trial judges should not knowingly submit jury

 instructions that are overly broad, but such instructions generally do not

 implicate the constitutional right to a unanimous verdict and thus would not
constitute palpable error under the high standard adopted by this Court in

Martin v. Commonwealth, 207 S.W.3d 1 (Ky . 2007) .

      In Harp v. Commonwealth, 266 S.W .3d 813 (Ky. 2008), this Court

concluded that it was palpable error for a trial judge, in a case where the

defendant was charged with multiple instances of conduct constituting the

same criminal offense, to issue jury instructions containing no specific,

distinguishing factors, i.e., a series of identically-worded instructions . Harp,

like most of the cases in which that particular instructional error arises,

involved a young sexual abuse victim who could not remember precise dates

but could testify to other facts surrounding each specific occurrence, thus

allowing for instructions tailored to each occurrence. In Harp-type cases, the

distinguishing factors among several instances of the same type of criminal

conduct can include a myriad of things such as where the particular offense

occurred, when it occurred in relation to some event in the victim's life such as

a birthday or school event, whether someone walked in on the event, how the

victim or perpetrator was clothed as the time and whether the perpetrator

made a specific comment or threat. In Harp, we urged trial courts to look

carefully at the proof and craft instructions which would guide appropriately

 the ensuing jury deliberations, assuring that all jurors were focused on one

 specific instance about which they had heard evidence and that when they

 voted they were considering whether that particular instance of alleged

 criminal conduct had been proven beyond a reasonable doubt. Given the

 confusion which would flow from undifferentiated instructions, there was no


                                          16
difficulty in concluding that the identically-worded instructions in such cases

can easily lead to a non-unanimous verdict and constitute palpable error.

      The case before us presents a different problem. Instead of imprecise

instructions that muddy the waters, we have very precise instructions that

conform to the applicable law but are overly broad. The jury, in essence, is

being "over-instructed" because they are given instructions that cover, yet go

beyond, the case which they have just heard. The specific problem in these

cases is there is no evidence whatsoever to -support some portion of the

instruction . Thus in this case there is no proof to support, for either of the two

defendants, at least two of the ways in which one can attain persistent-felony

offender status.

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

concluded that an instruction on trafficking that contained superfluous

language regarding possession of cocaine with intent to manufacture was

unsupported by any evidence and interfered with the defendant's right to a

unanimous verdict. Finding the error adequately preserved, the Court

concluded in a 4-3 decision that because of the constitutional requirement of a

unanimous verdict, harmless error analysis did not apply. Realistically, where

there is no evidence whatsoever to support the overly broad language, there is

no real prospect of a non-unanimous verdict, regardless of whether the error is

preserved or unpreserved. See Burnett, 31 S .W.3d at 884-85 (J . Graves

dissenting) ("The total lack of evidence supporting an alternate theory does not

require reversal.") Thus, our holding today undermines Burnett's conclusion

that harmless error analysis cannot apply due to a unanimous verdict
                                         17
violation . The immediate question before us, however, is whether, where the

error is unpreserved, overly broad instructions result in palpable error.

      In Martin, supra, this Court went beyond the language of Kentucky Rule

of Criminal Procedure (RCr) 10 .26 to amplify the palpable error standard with

language drawn from the federal cases, particularly United States v. Cotton, 535

U .S. 625 (2002), a case in which the United States Supreme Court found no

plain error where the indictment failed to set forth a necessary element of the

offense, i.e., the quantity of drugs . The Cotton Court applied the four-step test

adopted in United States v. Olano, 507 U.S. 725 (1999) which requires (1) error

(2) that is plain and that (3) affects substantial rights . Even if those three

factors are present, relief is available only if (4) the error "seriously affects the

fairness, integrity or public reputation ofjudicial proceedings." Id. at 732 .

Chief Justice Rehnquist, writing for a unanimous Supreme Court in Cotton,

concluded that the omission did not satisfy the fourth element of the Olano

test. In his words, "the real threat to the `fairness, integrity, or public

reputation ofjudicial proceedings' would be if respondents, despite the

overwhelming and uncontroverted evidence that they were involved in a vast

drug conspiracy, were to receive a sentence prescribed for those committing

less substantial drug offenses because of an error that was never objected to at

trial." Id. at 1783.

       While federal cases regarding "plain error", the federal counterpart to our

 palpable error, are not binding on us and this Court is free to make its own

 determinations regarding palpable error in Kentucky, the federal cases

 applying plain error analysis are worth consideration, particularly given that
                                           18
federal law is the origin of the "fairness, integrity or public reputation of

judicial proceedings" language adopted by this Court in Martin . In federal

cases, jury instructions that omit an element of the crime can constitute plain

error. See., e.g., United States v. Rossomando, 144 F.3d 197 (2d Cir. 1998)

(plain error in mail fraud case where instruction omitted language and posed

"genuine risk" that jury could find guilt even if it believed defendant did not

contemplate or intend to harm the victim) ; United States v. Haywood, 363 F.3d

200 (3d Cir. 2004) (failure to instruct jury that knowledge of obliterated serial

number was element of crime of possession of firearm with obliterated serial

number was plain error) . But see United States v. Feliciano, 223 F.3d 102 (2d

Cir . 2000) (even if trial court committed plain error in failing to instruct jury on

elements of narcotics conspiracy and even if that affected defendant's

substantial rights, no relief because of the abundant evidence in the record

that defendants engaged in extensive drug trafficking; under these

circumstances, omission, if any, could not seriously affect the fairness,

integrity or public reputation ofjudicial proceedings) . Similarly, plain error can

 occur when the jury is not instructed that it can only convict on one of two

 offenses . See, e.g., United States v. Brown, 996 F.2d 1049 (10th Cir. 1993)

 (plain error where jury was not instructed that it could not convict defendant of

 both theft of goods in interstate commerce and possession of those same

 goods) .

        My research reveals only one case where jury instructions were deemed

 plain error because of the potential for a non-unanimous verdict but,

 significantly, the instructions were not overly broad; rather, they failed to
                                          19
contain the requisite detail under federal jury instruction standards. In United

States v. Adkinson, 135 F.3d 1363 (11th Cir. 1998), following a five-month

bank fraud trial in which the court committed numerous reversible errors, the

judge then submitted jury instructions which did not identify the particulars of

the scheme to defraud on which the defendants were being prosecuted .

Because the jury heard evidence of 227 different overt acts and it was

impossible to know which of those acts the various jurors focused on in finding

a scheme to defraud, the Eleventh Circuit Court of Appeals found that the

defendants' rights to a unanimous verdict were violated and that constituted

plain error.3

       By contrast, several courts have concluded that overly broad jury

instructions do not constitute plain error. See, e.g., United States v. Leahy, 445

F.3d 634, 655 (3d Cir . 2006) (no plain error in giving "intangible property

rights" jury instruction in bank fraud prosecution when the government did

not present any evidence supporting such instruction or allege an "intangible

rights" theory because error did not prejudice defendants or diminish their

rights; single erroneous jury instruction, could not have been "possible basis

for the jury's verdict" where financial fraud was also instructed on and

evidence supported that theory) ; United States v. Newsom, 452 F .3d 593 (6th

Cir. 2006) (no plain error in overbroad jury instruction regarding uses that

could be made of FRE 404(b) evidence because one of the four means of using

 404(b) (to prove intent) was supported by the evidence) ; United States v. Hall,

 312 F.3d 1250 (11th Cir. 2002) (in prosecution for distribution and receipt of

 3 Adkinson is obviously analogous to   our decision in Harp, 266 S.W.3d   at 813.
                                               20
child pornography by computer through interstate or foreign commerce,

instruction requiring a visual depiction which is, "or appears to be," of a minor

engaging in sexually explicit conduct was plain error, but the error did not

affect defendant's substantial rights and affirming the conviction would not

seriously affect the fairness, integrity or public reputation ofjudicial

proceedings; the evidence established that the children depicted in the pictures

admitted at trial were actual children and no one ever claimed, or even hinted,

that the images were of virtual children) .

      In this case, the excess language in the jury instructions regarding ways

in which one can attain persistent felony offender status was error but not

palpable error for much the same reason there was no plain error in the above-

cited federal cases: the jurors would have to conjure up evidence to arrive at a

verdict based on the excess language. As the United States Court of Appeals

for the Third Circuit noted in Leahy, supra, the excess language regarding a

theory unsupported by the evidence could not have been "a possible basis for

the jury's verdict." 445 F.3d at 665. This, of course, distinguishes this type of

case from the Harp-type case where the failure to give incident-specific

 instructions creates significant confusion about the basis or bases for the

jury's verdicts .

       Moreover, for those who believe that jurors might be sufficiently confused

 by overly broad instructions that the jury would somehow "rely" on evidence

 that does not exist, I would further suggest that the "fairness, integrity or

 public reputation of judicial proceedings" is not impugned by such overly broad

 instructions . Where there is sufficient proof for a theory or theories properly
                                         21
included in the instruction(s), the additional presence of a theory in the

instructions unsupported by any evidence does not alter that first fact ; in other

words, there is still sufficient evidence of a criminal act and the fairness,

integrity and public confidence in the proceeding is not undermined by excess

language even if the jury could have, in some extraordinarily strained, highly

unlikely way misused that language . On this score, I would echo Chief Justice

Rehnquist's words for a unanimous Supreme Court in Cotton quoted supra,

albeit in a different context . The real threat to fairness, integrity and public

opinion of these particular proceedings would come from overturning a verdict,

where the instructions were sufficiently specific and the evidence was sufficient

for conviction, based on a unanimous verdict theory that requires us to assume

wholly implausible, if not completely irrational, behavior on the part of a juror

or jurors .
COUNSEL FOR APPELLANT, ZELNAR TRAVIS :

Daniel T. Goyette
Louisville Metro Public Defender
200 Advocacy Plaza
719 West Jefferson Street
Louisville, Kentucky 40202

Annie O'Connell
Assistant Appellate Defender
Office of the Louisville Metro Public Defender
200 Advocacy Plaza
717-719 West Jefferson Street
Louisville, Kentucky 40202


COUNSEL FOR APPELLANT, WILLIAM DAWSON:

Daniel T. Goyette
Louisville Metro Public Defender
200 Advocacy Plaza
719 West Jefferson Street
Louisville, Kentucky 40202

Cicely Jaracz Lambert
Assistant Appellate Defender
Office of the Louisville Metro Public Defender
717-719 West Jefferson Street
Louisville, Kentucky 40202


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

Jeffrey Allan Cross
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
