                                                 RENDERED: DECEMBER 14, 2017
                                                            TO BE PUBLISHED




                                    2017-SC-000107-MR


PHILLIP R.. CONRAD                                                      APPELLANT


                     ON APPEAL FROM MCLEAN CIRCUIT COURT
v.                     HONORABLE BRIAN, WIGGINS, JUDGE
                                NO. 16-CR-00029


COMMONWEALTH OF KENTUCKY                                              · APPELLEE


              OPINION OF THE COURT BY CHIEF JUSTICE MINTON

                                       AFFIRMING

       A circuit court jury convicted· Phillip Conrad of first-degree trafficking in

a controlled substance over 2 grams, and of being a first-degree persistent

felony offender. The jury recommended a t:Wenty-year prison sentence, which

the trial court imposed in its final judgment.

      Conrad appeals the judgment as a matter of right.1 He contends the trial

court erred by: (1) allowing a detective to give prejudicial testimony, (2) giving

faulty penalty-phase jury instrUctions producing a flawed sentence, (3) allowing

improper evidence in the penalty phase, and (4). allowing a non-unanimous jury

verdict in the penalty phase. Because we hold that none of these alleged errors ·

warrants reversal, we affirm the trial court's judgment.



      1   Ky. Const. § 110{2)(b).
                    I. FACTUAL AND PROCEDURAL BACKGROUND.
        Conrad was arrested after selling methamphetamine to a confidential

 informant during a controlled buy. After the controlled buy, Detective

 Thompson obtained a search warrant for Conrad's residence .. Upon executing

 the search warrant, police discovered scales, empty baggies, and a wallet

 containing approximately $2,300. Included in the $2,300 was $300 in marked
                                                              I



 bills. Testing by the Kentucky State Police Lab confirmed the presence of

 methamphetamine among the items seized.


                                      II. ANALYSIS.
    A. No Prejudice Resulted from Detective Thompson's Testimony.
        Conrad first argued that he was denied a fair trial because testimony

 from Detective David Thompson violated Kentucky Rule of Evidence (KRE)

· 404(b). We find no revers:lble error.

        The purpose of KRE 404(b) "is to prohibit unfair inferences against   a:
 defendant"2 by excluding "evidence of other crimes, wrongs, or acts ... to prove

 the character of a person in order to show action in conformity therewith;"3

 Conrad alleges the Commonwealth violated this rule when Detective Thompson

 explained to the jury that confidential informants are sometimes used as the

 "minnow to catch a bigger fish." Conrad did not object to the Commonwealth's

 question that produced this response from Detective Thompson. Conrad

 objected to the detective's.answer, citing KRE 404(b), but he did not move to


        2   Anderson v. Commnnwealth, 231$.W.3d117, 120 (Ky. 2007).
        a KRE 404(b).

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strike the answer as unresponsive. The trial court did not make a ruling on the

objection because the Commonwealth ended the line of questioning at that

point and moved on. Further, Conrad did not insist on a ruling from the trial

court nor did he request an admonition to be given to thejury.4

      Because no admonition was given and because the alleged error is

evidentiary in nature, our inquiry is whether this questionably preserved error

was of such a substantial nature as to sway the final judgment. s Conrad's

strongest statement in his argument asserting that the alleged improper

testimony swayed the jury is, "It is possible that the improper suggestion Mr.

Conrad was a high level trafficker contributed to him receiving the maximum

sentence." This is a weak assertion that hardly supports his argument. Even

without Detective Thompson's    sta~ement,   the jury heard testimony from the

informant-drug buyer, who testified that he asked to buy $800 worth of

methamphetamine and Conrad sold him just over 2 grams of

methamphetamine. Further, the transaction was recorded on both audio and

video, which the jury·heard and viewed. The recording referred to Conrad as

his "drug supplier" without objedion, and the state laboratory technician

testified that the substance seized from Conrad was indeed methamphetamine.

      With all this evidence, we are not persuaded that Officer Thompson's

minnow:-and-fish metaphor substantially swayed the verdict.


      4 Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky. 2005), overruled on other
grounds by Padgett v. Commonwealth, 312·S.W.3d 336 (Ky. 2010) (Inadmissible prior-
crime evidence may be cured by an admonition.).
      s Wiley v. Commonwealth"34~ S.W. 3d 570, 581 (Ky. 2010).

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   B. Conrad is not entitled to a Mistrial Because of Alleged Errors in the
      Sentencing Phase of the Trial Proceeding.
         Conrad next asserts that the trial court erred.when it denied his motion

for a mistrial. The motion was made upon the jury's return in the sentencing

phase, when the parties and the court were made aware 1f>:at the page of the.

instructions containing the verdict form, the page requiring the jury to record

the punishment it fixed for the underlying trafficking conviction, had been

inadvertently omitted from the set of instructions sent to the jury room.

Realizing the procedural irregularity, the trial court recommitted the case to the

jury with a full set of instructions. We find rio error here.

         Conrad acknowledges that there is no case in which a mistrial has been

granted because of the error he alleges. And the Commonwealth correctly notes

that the decision to grant .a mistrial is within the trial court's discretion6 and

that a   tri~    court should grant a mistrial only when there is   a showing of
"manifest necessity for such an action or an urgent or real necessity."7

         Conrad does not dispute that the trial court orally instructed the jury in

the sentencing phase by reading aloud its instruction that the jury was

required to fix a sentence for the underlying.trafficking conviction before fixing

punishment in the event they were further satisfied ~rom the evidence that

Conrad was a first-degree persistent felony offender. And the jury retired to the

jury room to deliberate punishment with a Written set of those instructions as



         6   Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002).
         1   Skaggs v. Commonwealth, 694 ·s.W.2d 672, 678 (Ky. 1985).

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 read aloud by the tJjal court. 8 But when the jury returned a verdict sentencing

 Conrad to twenty years solely on the PFO charge, the trial court and counsel

 discovered that the jury's set of written instructions was missing a verdict form

 directing the jury ,to fix punishment for the trafficking conviction.

        At that point, Conrad's trial counsel moved for a mistrial, arguing that

 the jury had deliberated using faulty jury instructions. The trial court denied

 the motion for mistrial. Instead, the trial court reasoned that the jurors ·could

 redeliberate with a corrected set of jury instructions and fix a sentence on the

 underlying trafficking charge. The trial court then sent the jury back for further

 deliberation, and the jury later returned having fixed a ten-year sentence on

 the underlying trafficking charge, enhanced to twenty years as a result of

 Conrad's being a first-degree persistent felony offender.

        Neither party disputes that that the typical trial ·procedure set forth for

·sentencing was not followed. We set forth the typical procedure for a combined

 truth-in-sentencing an.d persistent felony offender phase: ."the jury in the

 combined bifurcated hearing could be instructed to (1) fix a penalty on the

 basic charge in the indictment; (2) determine then whether the defen,dant is .

 guilty as a persistent felony offender, and if so; (3) fix the enhanced penalty as

 a persistent felony offender."9




        s Kentucky Rule of Criminal Procedure (RCr) 9.54 states that it is the duty of
 the trial court to instruct the jury in writing on the law of the case, which instructions
 shall be read _to the jury before closing summations of counsel.
        9   Commonwealth v. Reneer, 734 S.W.2d 794, 798 (Ky. 1987).

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       Conrad points to Owens v. Commonwealth and Sanders v.

 Commonwealth, both of which had similar facts to the case before us today.10

In both cases, we reviewed the alleged error under a palpable:..error standard

·and found none. And while the alleged error before us today is preserved, we

 cannot say that it warrants a mistrial.

       The error in the jury instructions was not caught by either party or the

trial court before the jury had used them in deliberation. Before the trial court

 accepted the verdict and discharged the jury, the error was caught, and the

jury \lVas sent back to deliberate with a full set of written instructions. As the

 Commonwealth notes, "an incorrect verdict should be corrected before the jury

is discharged, and it is not error for the court to require such con:ection."11

       In the facts· before us today, the trial court recognized the error· in

 procedure and corrected it before accepting the final verdict. In doing so, any

 procedural error was remedied, and Conrad cannot be said to have been

prejudiced. So we find no error in the trial court's denial of Conrad's rriotion for

a mistrial based upon this procedural irregularity.

    c. There was no Palpable Error with Sentencing Evidence.
       Conrad's remaining two arguments are ·unpreserved, so we review each

. alleged error under R_Cr 10.26,12 in which relief may be granted upon a




     lo Owens v. Commonwealth, 329 S.W.3d 307, 319 (Ky. 20il); Sanders v.
 Commonwealth, 301 S.W.3d 497 (Ky. 2010).
     11 Meaderv. Commonwealth, 363 S.W.2d 219, 222 (Ky. 1962).

       12   Kentucky Rples of Criminal Procedure 10.26.

                                            6
showing of "palpable error. "13 A finding of palpable error requires a showing

that the alleged error affected the "substantial rights" of a defendant, for who_m

relief may be granted "upon a determination that manifest injustice has

resulted from the error." 14 To find manifest injustice, the reviewing court must

conclude that the error so seriously affected the fairness, integrity, or public

reputation of the proceeding as to be "shocking or jurisprudentially

intolerable. "15

       Conrad alleges he was denied a fair sentencing because improper

evidence was elicited in violation of KRS 532.055. He asserts that the testimony

in question prejudiced his sentencing because it left the jury to "speculate

·about what Mr. Conrad might have done in order to have his probation

revoked.'' We fl.rid no palpable error.

       Conrad first takes issue with the testimony of the circuit clerk who

testified in the sentencing phase that Conrad had previously been on probation

that had been revoked. This testimony was followed by the testimony of the
                                     .                                        ~



probation officer. During the probation officer's testimony, she was asked why

individuals on probation would have t!J.eir probation status revoked. She

responded that there were multiple reasons, including committing additional

crimes.




       13   Id.
       14   Id.
       15   Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).

                                            7
       As to the testimony concerning revocation of Conrad's probation, we ~ook

to Martin v. Commonwealth. 16 While the facts are not identical, Martin involved

impermissible evidence being sent back with the jury. We coi:ne to the same

condusion that the Martin court did, that is, "there is not a reasonable

possibility that ... a different sentence would have been imposed. Thus,

manifest injustice did not result ... "17 We are not convinced that the limited

testimony of the circuit court clerk enhanced Conrad's penalty in any way.

       Conrad's next argument is that he was prejudiced when the jury

instructfons listed his previous second-degree persistent felony offender status.

The Owens court recognized that the status of being a persistent felony

offender second-degree is immaterial to labeling someone a persistent felony

offender first-degree but that the introduction of such information is harmless

error. 18

       Because the testimony of the circuit clerk and the probation officer was

so limited as not reasonably to sway the.penalty, and mention of being a

persistent felony offender second-degree is at most harmless error, we cannot

say there was palpable error.




       16   Martin v. CommDnwealth, 409 S.W.3d 340 (Ky..2013).
       17   Id. at 349.
       18   Owens v. CommDnwealth, 329 S.W.3d 307, 319 (Ky. 2011).

                                           8
   D. The· Jury finding that Conrad is a Persistent Felony Offender First-
      Degree was Unanimous.         ·
      Conrad asserts that the jury's verdict finding that he was a persistent

felony offender first-degree was in error becau~e it was not a unanimous

verdict. We disagree.

      A conviction for persistent felony offender first-degree requires the

defendant be "more than twenty-one (21) years of age and stand convicted of a

felony after having been convicted of two (2) or more felonies."19 Furthermore,·

as noted by the Commonwealth, the statute "only requires that completion of

service of sentence _or discharge from probation or parole on any, not each, of

the prior convictions shall have occurred withill five (5) years of the

commission of the instant offense."20

      Conrad argues that the jury did not reach a unanimous verdict because

his conviction could have been based on a litany of his prior convictions, and

the instruction did not require that the jury specify which prior convictions

formed the basis of their decision to convict him of being a first-degree

persistent felony offender. But, combination instructions are not forbidden in

the Commonwealth. And a "conviction of the same offense under either of two

alternative theories does not deprive a defendant of his right to a unanimous

verdict if there is evidence to support a conviction under either theory. "21 For



      19   KRS 532.080(3).
      20 Manning v. Commonwealth, 23. S.W.3d 610, 614 (Ky. 2000) (quoting Howard
v. Commonwealth, 608 S.W.2d 62, 64 (Ky. App. 1980)).
      21 Miller v. Commonwealth, 77 S.W.3d 566, 574 (Ky. 2002) .


                                        . g
Conrad, the jury could have concluded he was· a persistent felony offender first-

degree based on any two or all of the prior convictions given in the instruction.

         Because Conrad's designation as a persistent felony offender was

supported under any theory in the instruction we do     ~ot   believe he was denied

a unanimous verdict. He did not suffer palpable error.

                                    III.   CONCLUSION

     . For the foregoing reasons we find no basis for reversing the final

judgment of the trial court and further reject Conrad's argument of cumulative

error.

         All sitting. All concur.



COUNSEL FOR APPELLANT:

Erin Hoffman Yang
Assistant Public-Advocate


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Mar~Barry    .
Assistant Attorney General




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