         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    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 AFTER JANUARY l, 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 : JUNE 17, 2010
                                                      NOT TO BE PUBLISHED

               ,~Uyrrmr (~Vurf Jaf                   rnfurh~
                              2008-SC-000847-MR


SHARON DALE GREER                                                    APPELLANT



                 ON APPEAL FROM LINCOLN CIRCUIT COURT
V.                  HONORABLE DAVID A . TAPP, JUDGE
                           NO . 2008-CR-00005



COMMONWEALTH OF KENTUCKY                                              APPELLEE



                  MEMORANDUM OPINION OF THE COURT

              AFFIRMING AND REMANDING WITH DIRECTION
                       PURSUANT TO RCr 10.10


      Sharon Dale Greer appeals as a matter of right from a judgment of the

Lincoln Circuit Court entered upon a jury verdict convicting him of first-degree

assault, first-degree wanton endangerment, and of being a second-degree'

persistent felony offender (PFO) . Greer's assault conviction stems from his

shooting his ex-girlfriend two times and his wanton endangerment conviction

stems from his firing the gun in close proximity to the assault victim's young

granddaughter. In accord with the jury's recommendation, Greer received an

enhanced sentence of life imprisonment for the assault conviction and ten

1 Although the final judgment states that Greer was convicted of being a first-
  degree PFO, this appears to be a typographical error as it is clear from the
  record that Greer was indicted and found guilty of being a second-degree
  PFO.
 years imprisonment for the endangerment conviction . Although the jury

 recommended that the sentences run consecutively, the trial court properly ran

 the sentences concurrently . See Mabe v.. Commonwealth, 884 S.W .2d 668 (Ky.

 1994) .

           On direct appeal to this Court, Greer raises three claims of error: 1) that

 the trial court erred in refusing to give an instruction on extreme emotional

disturbance (EED) ; 2) that KRE 404(b) evidence of prior bad acts was

improperly admitted; and 3) that the Commonwealth offered false evidence

during the sentencing phase of Greer's trial . We reject each of the foregoing

contentions and affirm Greer's conviction and sentence .

           However, we note that the judgment appears to contain a clerical error

and direct the trial court to correct the error set out below pursuant to RCr

10 .10 .

                                   RELEVANT FACTS

       Appellant, Sharon Dale Greer, and the assault victim, Sandra Mullins,

began a romantic relationship in 2006. The couple soon began living together,

at first in Greer's camper, and later, part-time in the camper and part-time in a

home owned by Mullins, which the two were remodeling. The remodeling, in

part, was for the purpose of enhancing access for Mullins' ailing aunt, who

eventually moved in so that Mullins could care for her. After Mullins' aunt

moved into the home, the relationship between Greer and Mullins became

increasingly strained, and ultimately terminated with Mullins' request for Greer

to move out in November 2007. Greer moved into the camper on the same
property temporarily, but Mullins forced him to move out of the camper by

cutting off the electricity. At that point, Greer reluctantly moved off the

property, but he continued to contact Mullins frequently with pleas of

reconciliation and often drove back and forth on the road in front of Mullins'

home . In the meantime, Mullins continued to care for her aunt around the

clock during the week . On the weekends, Mullins' son and daughter-in-law

would relieve her, and she would stay in the camper located on the same

property.

       In early January 2008, Mullins' daughter-in-law was in the house and

the electricity started flashing on and off. She called Mullins to report the

problem and Mullins drove to the residence, bringing her two-year-old

granddaughter with her. When Mullins exited the vehicle, but before she got

her granddaughter out of the car, she saw Greer "hunkered beneath the

porch ." Greer then pointed a sawed-off shotgun at her and began ranting

about why she had left him. Mullins begged Greer for her life and all the while

Mullins' granddaughter, still in the car just a few feet away, was screaming.

Mullins' daughter-in-law came out onto the porch, but complied with Mullins'

immediate request to go back into the house, lock the door, and call the police .

After assuring Greer that she would not call the police if he let her go, Mullins

began to back away from Greer, at which point he shot her. After Greer loaded

another shell and shot Mullins a second time, she pretended to be dead and

Greer fled the scene .
          Two police officers responded to the scene . One of the officers dialed a

cell phone number that was believed to be Greer's. Someone picked up the call

but did not say anything. The officer proceeded to identify himself and ask for

Greer. The officer reminded Greer that the two of them knew each other and

then told Greer that he "needed to take care of this." Greer replied, "How's

Sandy [Mullins]?" The officer answered that Mullins was being transported to

the hospital for her injuries, but that she was alert. He then tried to get Greer

to divulge his location before things got any worse . Greer responded, "I'm not

going back," and ended the call.

      The police soon located Greer's abandoned vehicle and began a search of

the nearby wooded area. One of the officers discovered Greer sitting on a log

with a gun resting on his leg. Although it is unclear whether the act was

deliberate or accidental, Greer shot himself in the face and lost an eye as a

result.

      Subsequently, Greer was charged with first-degree assault for the

shooting of Mullins and first-degree wanton endangerment for firing the gun in

close proximity to Mullins' granddaughter . The jury found Greer guilty of both

offenses and found him guilty of being a second-degree PFO . In accord with

the jury's recommendation, Greer was sentenced to life imprisonment for the

assault conviction and ten years imprisonment for the wanton endangerment

conviction . Greer seeks reversal of his convictions and sentence, urging that

he was entitled to an instruction on extreme emotional disturbance (EED) . He

also asserts that admission of a statement that should have been excluded by
KRE 404(b) resulted in reversible error. Finally, Greer argues that certain

statements elicited by the prosecutor regarding good-time credits constitute

palpable error. After careful review, we find no merit in Greer's claims of error.

                                    ANALYSIS

I. There Was No Error in the Trial Court's Refusal to Instruct the Jury on
   Extreme Emotional Disturbance.

      Certain charged offenses may be reduced in degree if the offense was

committed under the influence of extreme emotional disturbance. KRS

508 .040(1) . One of those offenses is first-degree assault where the charge is

based upon the theory that the defendant intentionally caused serious physical

injury to another by means of a deadly weapon or dangerous instrument . KRS

508 .010(1)(a) . Because Greer was charged with first-degree assault upon this

theory, he contends that he was entitled to an EED instruction. However, even

though the statute provides that a defendant so charged "may establish in

mitigation that he acted under the influence of extreme emotional

disturbance," KRS 508 .040(1), entitlement to an EED mitigation instruction is

not automatic, but rather, is dependent upon the presentation of evidence

sufficient to support such instruction. Talbott v. Commonwealth, 968 S .W.2d

76 (Ky. 1998) . In explaining the concept of EED, this Court has stated:

                There must be evidence that the defendant suffered
            "a temporary state of mind so enraged, inflamed, or
            disturbed as to overcome one's judgment, and to cause
            one to act uncontrollably from [an] impelling force of
            the extreme emotional disturbance rather than from
            evil or malicious purposes ." McClellan v.
            Commonwealth, 715 S.W .2d 464, 468-69 (Ky. 1986) .
            "[T]he event which triggers the explosion of violence on
            the part of the criminal defendant must be sudden and
             uninterrupted ." Foster v. Commonwealth, 827 S .W.2d
             670, 678 (Ky. l. 991) .

Greene v. Commonwealth, 197 S .W.3d 76, 81 (Ky. 2006) .

       In the case at bar, Greer presented no evidence of a triggering event nor

was there evidence that he suffered an enraged, inflamed, or disturbed state of

mind that compelled his criminal actions . Greer did not take the stand, but he

alleges that sufficient evidence of EED was introduced through other witnesses.

Specifically, he highlights other witnesses' testimony concerning his persistent

attempts to communicate with Mullins after their breakup, aimed at

persuading her to reconcile, as well as testimony that he was seen frequently

driving up and down the road in front of Mullins' home . Lastly, Greer points to

Mullins' testimony, describing Greer's look or demeanor immediately prior to

the shooting as "wild ."

      We agree with the trial court that Greer failed to present evidence

sufficient to warrant an EED instruction. The trial court explained :

                The evidence does not demonstrate that he was
             enraged, inflamed or disturbed. Other than the
            evidence that Greer appeared "wild," a characterization
            of his appearance by Mullins in the moments before
            Greer shot her the first time, no evidence even hints at
            a bases for an EED instruction . . . . No testimony
            establishes that Greer acted uncontrollably . To the
            contrary, at one point, immediately prior to the
            shooting, Greer seemed to objectively weigh the
            advantages of not shooting Mullins in exchange for her
            promise not to notify law enforcement of his
            threatening conduct . . . . Moreover, the evidence
            establishes that in the period preceding the shooting,
            though the parameters of the period cannot be
            identified with certainty, Greer actually laid in wait for
            Mullins to appear. Uncontroverted evidence suggests
            he parked his vehicle some distance away, that he
             concealed himself in the storage shed, and, under the
             porch immediately adjacent to the house, and that he
             did all of those things with the forethought to arm
             himself beforehand .

 Greer argues that the mere fact that he lay in wait, implying premeditation,

does not automatically preclude entitlement to an EED instruction. We agree

provided that competing evidence is introduced tending to show EED . Holland

 v. Commonwealth, 114 S .W .3d 792 (Ky. 2003) . But, again, we must agree with

the trial court that such evidence was not presented here .

       In his brief to this Court, Greer identifies the triggering event for his EED

as "a traumatic breakup" or "rejection ." However, "evidence of mere `hurt' or

`anger' is insufficient to prove extreme emotional disturbance ." Talbott, 968

S.W.2d at 85 (citing Thompson v. Commonwealth, 862 S .W.2d 871 (Ky. 1993)) .

Furthermore, there must be a reasonable explanation or excuse for the claimed

EED . McClellan v. Commonwealth, 715 S .W.2d 464 (Ky. 1987) . The

reasonableness of the explanation or excuse "is to be determined from the

viewpoint of a person in the defendant's situation under the circumstances as

the defendant believed them to be ." KRS 507 .020(1) (a) . However, Greer offered

no evidence that his perception of the situation or circumstances was somehow

altered . A romantic breakup that upset the defendant, even if traumatic, is

simply insufficient standing alone, either to constitute a triggering event or to

supply a reasonable explanation for the purported EED.

      Greer further attempts to support his argument by comparing his case to

Holland v. Commonwealth, supra . We see little similarity in the two cases . In
 Holland, the defendant shot her boyfriend and his ex-wife, who were attempting

 to reconcile . The evidence supporting an EED instruction for Holland included

 her recent repeated suicide attempts and expert medical testimony that the

prescribed pain medications that she was taking at the time of the shootings as

well as diagnosed psychiatric conditions could have altered her perception .

Further, her behavior in the few days preceding the shooting supported the

EED instruction . Specifically, Holland was taking the pain medication as a

result of a recent back surgery . Although her boyfriend (ultimately one of the

victims) promised to stay with her during her recovery, she awoke one night

and could not find him . She drove to his apartment and found him in bed with

his ex-wife . The confrontation ended when her boyfriend physically threw her

down the stairs and out of the house . Holland went to the hospital for her

injuries and the evidence revealed that she had proceeded to run errands the

day thereafter while still in her hospital gown. There was also testimony that

on the morning of the shooting, Holland was groggy and incoherent . After the

shooting, Holland fled to her sister's residence in another state, but upon

arrival, immediately called the Kentucky police and confessed to the shootings .

Given the foregoing, it is understandable that this Court determined that

Holland should have received an instruction on EED .

      We fail to discern, however, anything but a stark contrast between the

evidence presented in Holland and the evidence, or lack thereof, presented

here. Although Holland did explain that the notion of a triggering event was

broad enough to include "the cumulative impact of a series of related events,"
 id. a t 807 (quoting Fields v. Commonwealth, 44 S.W.3d 355, 3,59 (Ky. 2001)),

 there was, in fact, evidence presented in that case of an uninterrupted series of

 emotionally charged events, each one potentially increasing Holland's

 emotionally disturbed state of mind . We do not find Holland to be persuasive

 here where the evidence demonstrated nothing more than an uninterrupted

reaction to a single occurrence - a bad breakup . At best, the "series" of events

would be Mullins' ejecting Greer from the property and refusing to reconcile

with him. Nor do we agree with Greer that the act of shooting himself when

confronted by the police officer in the woods was sufficient to support an EED

instruction . The officer who witnessed the shot testified that he believed the

gun accidentally fired, but conceded on cross-examination that it may have

been deliberate . Regardless, there was no evidence presented of a triggering

event and there, likewise, was no evidence presented to support that Greer's

purported EED was the result of a reasonable explanation or excuse, even from

Greer's own viewpoint. Accordingly, we affirm the trial court's ruling as Greer

did not present evidence sufficient to warrant an instruction on EED.

II. There Was No Error in the Admission of Greer's Statement that "I'm
    not going back."

      As noted above, when the officer called Greer's cell phone just after the

shooting and asked for Greer's location, Greer's response just before ending the

call was "I'm not going back." Greer contends that the admission of this

statement was improper under KRE 404(b) because it suggested that Greer had

previously been incarcerated . This issue is preserved by Greer's

contemporaneous objection to introduction of the statement . KRE 404(b)
 prohibits evidence of other crimes, wrongs, or bad acts offered to prove the

 character of a person . However, we agree with the trial court that, absent

additional evidence suggesting that the statement was made in reference to a

 prior incarceration, it was too ambiguous to be characterized as a reference to

a prior bad act under KRE 404(b). As the trial court pointed out, "back" could

have had multiple meanings, such as "back to the scene of the crime," rather

than "back to prison ." Further, even accepting Greer's argument that the likely

interpretation of the statement suggested that Greer had been incarcerated in

the past, this vague and fleeting reference would not constitute reversible error.

The admission of evidence is subject to the trial court's discretion, Matthews v.

Commonwealth, 163 S.W.3d 11 (Ky. 2005), and we discern no abuse of that

discretion here .

III. There Was No Error in the Introduction of Evidence Concerning Good-
     Time Credit in the PFO Phase of Trial.

      Greer contends that the Commonwealth used false evidence when it

informed the jury that he would be entitled to good-time credit when, in fact,

his status as a violent offender, KRS 439 .3401(4) precludes him from receiving

any good-time credit. A review of the record confirms the Commonwealth's

position on this issue to the effect that Greer has mischaracterized the

proceedings by failing to provide the proper context for the testimony cited in

support of his argument . Specifically, at defense counsel's request, Greer's

proceedings were trifurcated . The first phase was the guilt phase for the

assault and endangerment charges . The second phase was the guilt phase for
 the PFO charge . And the final phase consisted of penalty determination on

 both the underlying offenses as well as the PFO enhancement .

       During the second phase (PFO guilt phase), the Commonwealth elicited

 testimony from a probation and parole officer concerning good-time credit.

 However, two of the required elements of the PFO charge were that Greer had

previously been convicted of a felony and that he had completed service of the

sentence for that felony within five years prior to the date he committed the

current felonies . KRS 532.080(2) . The testimony concerning good-time credit

was elicited for the purpose of establishing Greer's date of release or serve out

on a previous manslaughter sentence and to explain to the jury how Greer

served out his previously imposed sentence before the full period of time

imposed by the sentence had elapsed. There was no suggestion during this

testimony that Greer would be eligible for good-time credit during incarceration

for the current offenses. And, in fact, during the third phase (the penalty

phase), the Commonwealth elicited testimony concerning Greer's status as a

violent offender and the relevance of this status inasmuch as it would require

Greer to serve eighty-five percent (85%) of any sentence imposed before he

would be eligible for parole . There was no mention of good-time credit in the

penalty phase .

      In his reply brief to this Court, Greer maintains that his argument was

not a mischaracterization because the good-time credit evidence offered in the

PFO phase would have left the jury with the impression that Greer would be

entitled to good-time credit for the current offenses . Specifically, the previous
 felony was also a violent offense, but at the time of Greer's previous conviction,

violent offenders were not precluded from the receipt of good-time credit .

Because the jury was not made aware of this change in the law, Greer argues

that the good-time credit testimony misled the jury to assume that Greer was

eligible for good-time credit despite his violent offender status . At any rate,

Greer concedes that the issue is unpreserved and requests palpable error

review .

       To constitute palpable error, a defendant must demonstrate the

"probability of a different result or error so fundamental as to threaten a

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

S .W .3d l, 3 (Ky. 2006) . Greer's assertions come nowhere near meeting this

standard . Any connection between the evidence offered to prove the PFO

charge and its speculative impact upon the jury in the penalty phase is remote

at best. Not only has Greer failed to support his assertion that the

Commonwealth's evidence was "false," he has failed to offer more than mere

speculation that the jury may have been misled . Greer could have easily

clarified the issue of which he now complains during the penalty phase .

However, notwithstanding his failure to offer such clarification, the speculation

that the jury made the remote connection that Greer now discerns is simply

insufficient to merit relief.

IV. The Trial Court is Directed to Correct a Clerical Error in the
    Judgment.

      Although not noticed by either party, the trial court's judgment twice

refers to Greer's first-degree PF4 conviction when, in fact, Greer was adjudged


                                        12
 a PFO in the second degree . Although Greer was indicted on two counts of

 second-degree PFO, implying that he may have had more than one prior felony

 conviction, in which case a first-degree PFO charge could have been

 appropriate, evidence of only one prior felony conviction was introduced and

 the jury was properly instructed on second-degree PFO. Having verified in the

record that the jury was also properly instructed on sentencing options in

accord with Greer's second-degree PFO status, the erroneous designation of

first-degree PFO in the judgment appears to be a mere clerical error. As the

indictment, instructions, jury's verdict, and sentencing comport with second-

degree PFO, the error could not have been "the deliberate result of judicial

reasoning and determination," but rather a clerical error, subject to correction

by the trial court at any time under RCr 10 .10 . Hutson v. Commonwealth, 215

S .W .3d 708 (Ky. App . 2006) . RCr 10 .10 allows the trial court to correct a

clerical error in its judgment at any time, even while on appeal with leave of the

appellate court . Accordingly, we affirm the trial court's judgment in all

respects, but direct the trial court to correct the clerical error pursuant to RCr

10 .10 .

                                  CONCLUSION

       The trial court properly determined that Greer failed to present evidence

warranting an instruction on extreme emotional disturbance . Additionally,

Greer's vague statement to the police officer, "I'm not going back," did not

introduce evidence of a prior bad act and, therefore, was not inadmissible

under KRE 404(b) . Nor was there error, let alone palpable error, in the



                                        13
admission of testimony concerning good-time credit, particularly where the

testimony was properly elicited to prove an element of the PFO offense during

the second phase of the three phase trial . Accordingly, Greer's convictions and

sentences are affirmed but the judgment and sentence must be vacated and

remanded for correction . Pursuant to RCr 10 .10, the trial court is directed to

correct the clerical error in the judgment, replacing first-degree with second-

degree in reference to Greer's PFO status .

      All sitting. All concur.


COUNSEL FOR APPELLANT:

Erin Hoffman Yang
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentuc

Jason Bradley Moore
Assistant Attorney General
Office for Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
