                                                      RENDERED : MAY 20, 2010
                                                            TO BE PUBLISHW

                 ';VUyrrMr C~Vurf of ~6
                                2008-SC-000731-DG



 LUTHER WILBERT SEXTON                                               APPELLANT



                      ON REVIEW FROM COURT OF APPEALS
 V.                      CASE NO. 2007-CA-000194-MR
                    PULASKI CIRCUIT COURT NO . 05-CR-00267



COMMONWEALTH OF KENTUCKY                                              APPELLEE


              OPINION OF THE COURT BY JUSTICE CUNNINGHAM

                          REVERSING AND REMANDING

        On July 21, 2005, the Pulaski County Public School Child Care Program

took approximately 24 children, between the ages of five and twelve years, to

the General Burnside Island State Park. As the children were swimming with

other patrons at the pool, Brenda McDowell, the Director of the program,

noticed Appellant, Luther Wilbert Sexton, across the road by a shelter. He was

squatted down, holding a video camera. Appellant then entered his truck and

left the premises ; however, one of the parents at the pool was able to make out

the license plate number and the model of the vehicle as Appellant was driving

away.

        The police were called and Pulaski County Sheriff's Deputy, Troy McClin,

responded . After acquiring the address through the license plate check,
 Deputy McClin went to Appellant's home. When McClin asked Appellant if he

 had been at the pool earlier, Appellant initially denied that he had . Appellant

 later recanted his denial after McClin informed him that his truck had been

 observed at that location . Initially, Appellant stated that he had just been

 sitting there, but later indicated that he did have a video camera. However,

 Appellant denied videotaping the children in the swimming pool. Instead, he

 said that he was attempting to film a houseboat he had seen in the lake, but

 was unable to retrieve his camera in time . In other words, he denied doing any

 actual videotaping. McClin then asked Appellant if he could view the tape in

his camera, and Appellant complied . After briefly scanning a portion of the

videotape, McClin did not see any footage of the children swimming in the pool

or of a houseboat . The footage viewed by McClin was actually a recording of a

television show. At this point, McClin returned the videotape to Appellant.

After warning Appellant not to return to the pool, McClin left the premises .

      Sometime after McClin left Appellant's home, an arrest warrant was

taken for Appellant, charging him with disorderly conduct at the pool earlier

that day. Also, a search warrant was issued for Appellant's house after it was

learned that Appellant was on bond for three counts of sexual abuse in Wayne

County. Two hours after the initial encounter, McClin returned to Appellant's

house to serve the warrants . The search of Appellant's house did not reveal the

videotape that McClin had previously watched, nor were any forms of child

pornography or any other criminal material discovered in Appellant's home .
 Appellant refused to tell the police where the videotape was located, and he was

 subsequently charged with tampering with physical evidence . KRS 524 . 100 .

       Prior to trial, the Commonwealth gave notice of its intention to introduce

 evidence that Appellant was a registered sex offender with prior convictions in

other states. KRE 404(b) . The Commonwealth contended that this evidence

would show that a previous conviction in Florida involved Appellant's having

videotaped young children in swimsuits playing at the beach, thus supporting

the Commonwealth's theory that the videotape contained footage of the

children at the Burnside pool, as well as proving Appellant's alleged motive for

destroying the tape.

      A two-day trial was held in Pulaski County, where the jury returned

guilty verdicts for second-degree disorderly conduct and tampering with

physical evidence. Appellant then pled guilty to being a persistent felony

offender in the first-degree . The jury recommended an enhanced sentence of

12 years in prison and a fine of $250 .00, which the trial court ultimately

accepted . Appellant appealed as a matter of right to the Court of Appeals, who

affirmed the convictions. Thereafter, this Court granted discretionary review .

      For the following reasons, we reverse the Court of Appeals and hold that

Appellant was entitled to a directed verdict on the charge of tampering with

physical evidence. As this issue is dispositive, we need not address the issue of

the admissibility of KRE 404(b) evidence .

      On a motion for a directed verdict, the trial judge must draw all fair and
reasonable inferences from the evidence in favor of the Commonwealth .

Commonwealth v. Benham, 816 S .W.2d 186 (Ky. 1991) . The standard for

appellate review of a denial of a motion for a directed verdict based on

insufficient evidence is if, under the evidence as a whole, it would be clearly

unreasonable for a jury to find the defendant guilty, then he is entitled to a

directed verdict of acquittal . Commonwealth v. Sawhill, 660 S.W .2d 3 (Ky.

1983) . "The Commonwealth bears a burden of proof in establishing each

element of the charged crime, else a motion for a directed verdict by the

defendant must be properly entertained ." Williams v. Commonwealth, 721

S.W.2d 710, 712 (Ky. 1986) .

      KRS 524.100 provides:

            (1) A person is guilty of tampering with physical
            evidence when, believing that an official proceeding is
            pending or may be instituted, he :

               (a) Destroys, mutilates, conceals, removes or alters
               physical evidence which he believes is about to be
               produced or used in the official proceeding with
               intent to impair its verity or availability in the
               official proceeding; or

               (b) Fabricates any physical evidence with intent
               that it be introduced in the official proceeding or
               offers any physical evidence, knowing it to be
               fabricated or altered.

           (2) Tampering with physical evidence is a Class D
           felony.

     From the evidence introduced at trial, we believe that it was clearly
 unreasonable for a jury to find Appellant guilty of tampering with physical

 evidence . The Court of Appeals' opinion focuses primarily on Appellant's

 subjective knowledge of imminent proceedings. However, this ignores a crucial

 step. The Commonwealth still must prove the existence of some physical

 evidence that Appellant allegedly tampered with. In this instance, the

 Commonwealth simply failed to produce any evidence that Appellant was

 actually videotaping anyone or anything while at the General Burnside Island

 State Park. Appellant maintained that he was attempting to videotape a

passing houseboat, but was unable to get to his camera in time . This story is

seemingly confirmed by the fact that the videotape in Appellant's camera that

McClin viewed was of a television show. McClin did not see any footage of

either a houseboat or of children swimming in the Burnside pool on the

videotape, which is why he subsequently returned the tape to Appellant.

      As it stands, the Commonwealth failed to produce any evidence that a

videotape, filmed by Appellant, of children swimming at the Burnside pool even

exists. Absent such a videotape, it strains the bounds of reason to conclude

that Appellant in some way actively "conceal[ed] . . . physical evidence . . . with

the intent to impair its verity or availability in the official proceeding." Because

the Commonwealth did not present evidence that would prove all elements of

tampering with physical evidence, it would be clearly unreasonable for a jury to

find guilt. Accordingly, the trial court erred in denying a directed verdict on

this charge.
      We, therefore, set aside Appellant's conviction for tampering with

physical evidence. This, then, requires that Appellant's conviction for being a

first-degree persistent felony offender be vacated as well, since KRS 532 .080(3)

requires conviction of a third felony after having been previously convicted of

two prior felonies. The failure of the underlying felony conviction would render

improper Appellant's conviction for being a first-degree persistent felony

offender. Also, the Court of Appeals did not find error in the trial court's denial

of Appellant's directed verdict motion as to the disorderly conduct charge ;

however, this issue was not made part of the appeal before this Court.

      For the reasons set forth herein, we reverse the decision of the Court of

Appeals and remand this case to the Pulaski Circuit Court for entry of a new

sentence in accordance with this opinion .

      All sitting. All concur.
COUNSEL FOR APPELLANT:

Samuel N . Potter
Department of Public Advocacy
Assistant Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

Todd Dryden Ferguson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
