         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    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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,
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RENDERED AFTER JANUARY 1, 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 : MAY 22, 2008
                                                                 NOT TO BE PUBLISHED

                 0sttpxattE           (aIIixxf     of ~r
                                    2007-SC-000162-MR



 TIMOTHY P . HEIL                                                              APPELLANT


                   ON APPEAL FROM JEFFERSON CIRCUIT COURT
 V.                 HONORABLE STEPHEN K. MERSHON, JUDGE
                               NO. 05-CR-002767


COMMONWEALTH OF KENTUCKY                                                        APPELLEE



                       MEMORANDUM OPINION OF THE COURT

                             REVERSING AND REMANDING


       Timothy Heil appeals as a matter of right from a January 25, 2007 Judgment of

the Jefferson Circuit Court convicting him of first-degree wanton endangerment and

first-degree stalking . In accord with the jury's recommendation, the trial court

sentenced Heil as a second-degree persistent felon to two consecutive ten-year terms

of imprisonment .' The Commonwealth accused Heil of stalking his estranged wife, Lori

Heil, and of wantonly endangering Lori's friend, Channin Daugherty . Heil contends that

the improper admission of extensive evidence of collateral bad acts, a stalking

instruction not supported by the evidence, and a non-unanimous verdict on the stalking

offense denied him a fair trial. We agree that collateral evidence of an uncharged crime

and a non-unanimous verdict with respect to the stalking charge entitle Heil to relief.


  ' Heil was also found guilty of third-degree terroristic threatening, for which he was
sentenced to one day in jail, and he was acquitted of menacing .
                                     RELEVANT FACTS

        The Heils were married in July 1993 and made their home in Charlestown,

 Indiana . Lori brought a daughter to the union, K. H., whom Tim adopted . The couple

 also had three sons together. Lori testified that in the fall of 1993, when she was

 pregnant with the first boy, she and Tim engaged in one of the arguments that came to

 characterize their relationship . During the argument Tim pushed her so hard that she

 fell. The fall knocked the breath out of her, necessitated a stay in the hospital so that

 her pregnancy could be monitored, and caused her deep concern for the child's well

 being . Thereafter, Lori testified, Tim's anger became one of the constants of the

 marriage . When he was angry, Lori said, Tim would break things . At different times he

broke chairs, kicked or punched holes in the wall, and once he broke the footboard of a

bed .

        Lori and Channin Daugherty both testified about one of Tim's angry outbursts

that occurred in January 1996, when the Heils had invited Channin ; her husband,

Michael ; and their children to the Heilses' home for a birthday party. Lori and Michael

had been friends since childhood, she and Channin worked together, the couples

attended the same church, and their children were friends and participated in many of

the same activities . On this occasion, however, a disagreement between Channin and

Tim caused Tim to fly into a rage . He loudly insisted that the Daughertys get out of his

house, he pushed Channin, and he tried to start a fight with Michael . Concerned

neighbors summoned the police, and the next day Channin obtained a protective order

against Tim . The upshot was a permanent rift between Tim and the Daughertys . For

some time he insisted that Lori and the children have nothing to do with them, and even
when contact was eventually resumed he remained disapproving .

       The Commonwealth sought to introduce another fact from the early years of the

 marriage . In 2000 Tim was convicted in Indiana for having molested, in 1995, one of

the Heilses' babysitters . This evidence, however, the trial court excluded .

       Notwithstanding the arguments and the tensions arising from Tim's anger, Lori

testified that the marriage remained functional until about 2004, when Tim began

insisting on virtually complete control over her. He monopolized the couple's finances

and financial records and began demanding that Lori account for her whereabouts

whenever she was away from home . This scrutiny became more and more oppressive

and occasioned seemingly constant arguing . Following an outburst in December 2004,

she and the children were trying to get out of the house when Tim pushed K. H. down

the steps and grabbed Lori around the throat. Matters came to a head in the summer

of 2005 . Lori testified that one evening she was going to be late getting home and so

she left a somewhat sarcastic message on Tim's voice-mail to the effect that she was

reporting in as required . When she arrived home, she found vegetables-a gift from a

neighbor's garden--thrown and smashed all over the kitchen .

       That was the last straw . With Channin Daugherty's help Lori contacted a divorce

attorney and tried to figure out if there was any way she and the children could afford to

separate from Tim. In late July 2005, Lori told Tim that if she could afford it she would

proceed with a divorce immediately . Tim warned her that his children would never

spend the night in a house with another man . On July 31, 2005, Tim found in Lori's car

a list of questions in Channin's handwriting for the divorce attorney. He confronted Lori

with the list and demanded to know who had written it. They argued about the list and
they also argued over K. H .'s birthday party. K. H. was turning fourteen and was to

 have a pool party that afternoon at her aunt's house . Tim wanted to attend, but Lori felt

 it would be inappropriate for him to attend a party for adolescent girls . The trial court

correctly excluded any mention of Tim's conviction as a reason for Lori's feeling . In

addition to the party, Lori, a musician, was scheduled to perform at a wedding that

night . As she and the children were preparing to leave, Tim blocked her in a closet and

told her that after the party and the wedding she should leave the children with relatives

and come home alone so that they could have out their differences "once and for all ."

Lori testified that his manner and his ultimatum terrified her. She feared that she could

not safely return home. After the wedding she obtained some money from her father,

and then she, her children, the Daughertys, and their children drove to a Louisville

restaurant to eat and to find a shelter for Lori and her children .

       Channin Daugherty testified that she was the first to finish eating and that

because their various cell phones all needed charging, she took Lori's cell phone to

Lori's van where there was a charger. She was sitting in the van talking to a staff

member of a shelter when Tim appeared at the window and furiously demanded to

know where Lori was. Hoping to lead him away from the others, Channin gestured

away from the restaurant and, with Tim pounding on the window, backed the van out of

its parking space and pulled into traffic. Tim followed her in his truck. According to

Channin, he repeatedly tried to force her to the side of the road and finally succeeded in

forcing her onto the median. She escaped again, however, when he got out of his

truck, and in the meantime she called 911 . The emergency operator contacted police

officers . When Tim finally abandoned his pursuit, Channin returned to the restaurant
and told the others and the police what had happened. The police arranged for all of

them to spend the night at a Louisville motel and took measures to ensure that they

were not followed as they drove there. Soon after they arrived, there began a nightlong

barrage of phone calls from Tim. They did not answer those calls, but knew that Tim

was calling through caller identification . Phone records confirmed that Tim had called

each of their cell phones numerous times into the early morning, and that he began

calling again soon after sunrise . Phone records and other witnesses also indicated that

during the night of July 31, 2005 and for several days thereafter Tim made repeated

calls to Lori's friends, acquaintances, and family members and several times threatened

that if Lori did not contact him he would destroy her belongings and leave her with

nothing .

       The next morning, Lori and the Daughertys planned to go directly to the

Jefferson County Judicial Center to apply for protective orders, but when they went to

the motel's parking lot Lori's van was missing. Because Tim was the only other person

with a key to the van, they inferred that he had taken it, and it frightened them that he

knew where they were despite police assurances that he had not followed them . Lori

did obtain a protective order, which was served on Tim the next day, August 2, 2005.

Channin, too, applied for a protective order and also filed charges against Tim for

terroristic threatening and wanton endangerment . Both families continued to hide for

several days. On about August 6, 2005, as testified to by Michael Daugherty and

confirmed by Ron Harmon, an official and acquaintance from the couples' church,

Harmon called Michael to warn him that he had just accompanied an apparently

suicidal Tim to the hospital and that en route Tim had expressed a frightening degree of
 anger toward the Daughertys and a desire to harm them . On about August 8, 2005,

 Tim appeared at the hearing on Lori's motion for a domestic violence order, and at the

 conclusion of the hearing he was arrested on the charges filed by Channin .

        The next day Lori was able to return to her Charlestown residence . She found

the house in disarray . Although the children's rooms and belongings were not

disturbed, the contents of drawers and closets were strewn about the rest of the house.

 Most of Lori's clothes, family records, and other items of particular value to her were

missing . She found an axe on her bedroom floor. Her van was not at the house. The

next day one of her sons showed her a small television monitor concealed in the

basement . The monitor showed K. H.'s bedroom . Lori summoned Charlestown police

officers, and in addition to a clock-radio with a hidden camera in K. H .'s room, they

found a device for recording phone conversations .

       K. H . then revealed to Lori, as K. H. testified, that sometime in 2004 Tim had

begun harassing her in sexual ways. Once while she was sleeping on the couch he

had awakened her by placing his hand inside her shirt on her breast . He frequently

came into her room and watched her change clothes . She had been awakened several

times during the night by what she believed was the sound of his masturbating in her

doorway, and on other occasions she had awakened and found semen on her face.

Once, not long before July 31, he had appeared fully naked before her and urged her to

"wrestle ." When she ran to her room and locked the door, he pounded on it,

threatening to break it down and to "fuck" her. He warned her not to tell anyone,

because her brothers would hate her for getting him in trouble. These allegations gave

rise to criminal charges in Indiana .
        Later in August, Lori, who was still without her van, found stored in Tim's truck

account records from a satellite tracking service . She was able to access the account

on the internet and discovered that soon after July 23, 2005 Tim had installed a

monitoring device in her van which enabled him to track the van's location through his

e-mail account. The last record of the van's position was from August 2, 2005 on Brim

Drive in Jeffersonville . Lori drove up and down Brim Drive, but did not locate the van. It

was another month, near the end of September 2005, before one of Tim's

acquaintances who lived on Brim Drive phoned Lori and revealed that early in August

she had, at Tim's behest, helped him move the van to the Executive Inn parking lot in

Louisville, which is where Lori found it. The same acquaintance was also able to return

some of Lori's records and other belongings .

       On September 15, 2005, a Jefferson County grand jury indicted Tim on charges

of wantonly endangering Channin Daugherty, of stalking Lori, of making a terroristic

threat against the Daughertys, and of menacing Lori. By virtue of his 2000 conviction,

he was also alleged to be a second-degree persistent felon . Prior to trial, the

Commonwealth gave notice pursuant to KRE 404(c) that it intended to introduce

evidence of Tim's prior crime and of his alleged bad acts throughout the marriage . With

the sole exception of the prior conviction, the trial court agreed with the Commonwealth

that all the evidence summarized above was admissible inasmuch as it tended to show

Tim's and Lori's states of mind on July 31, 2005 and during the early part of August .

Tim contends that much of the Commonwealth's proof had little or no relevance to the

crimes charged, but was introduced merely to impugn his character, and that the trial

court thus abused its discretion by admitting it. In particular he objected before and at
 trial to the evidence of his alleged spying on and abuse of K. H . ; to the evidence of the

 1996 incident involving the Daughertys ; and to all the evidence of prior threatening

 behavior against Lori, including the 1993 pushing incident, the property damage, the

 incident during which he allegedly pushed K. H. and grabbed Lori, and the incident

 involving the smashed vegetables . Although the admission of most of this evidence

was within the trial court's discretion, we agree with Tim that the evidence regarding the

alleged abuse of K. H. was unduly prejudicial . Its admission necessitates a new trial .

                                          ANALYSIS

I. Some, but not all, of the Prior-Bad Acts Evidence should have been Excluded.

        As the parties correctly note, evidence of a defendant's "other crimes, wrongs, or

bad acts" is not admissible as proof of the defendant's character or of his propensity to

break the law. KRE 404(b), however, permits the introduction of such evidence

               (1) If offered for some other purpose, such as proof of
               motive, opportunity, intent, preparation, plan, knowledge,
               identity, or absence of mistake or accident ; or
               (2) If so inextricably intertwined with other evidence essential
               to the case that separation of the two (2) could not be
               accomplished without serious adverse effect on the offering
               party .

This rule is to be applied cautiously, we have explained, in accord with its fundamental

purpose of "prohibit[ing] unfair inferences against a defendant ." Anderson v.

Commonwealth , 231 S.W.3d 117, 120 (Ky . 2007) .

       To be admissible under the rule, the evidence of other criminal or wrongful acts

must be (1) relevant for some purpose other than to prove criminal predisposition, (2)

sufficiently probative to warrant introduction, and (3) sufficiently probative so that its

probative value outweighs its potential for prejudice to the accused . Id. ; Bell v.
 Commonwealth , 875 S .W.2d 882 (Ky. 1994). In other words, the alleged prior wrong

 must be relevant to a contested element of the charged crime, and the prior bad act

 evidence must be probative in two senses . First, it must be probative that the prior

 wrong did in fact occur. This requirement is satisfied "if the jury could reasonably

 conclude that the act occurred and that the defendant was the actor." Davis v.

 Commonwealth, 147 S .W .3d 709, 724-25 (Ky. 2004). Second, the evidence must also

 be sufficiently probative of an element of the charged crime to withstand the KRE 403

 balancing test between probative value and prejudicial effect, with the assumption,

 moreover, that prior bad act evidence is inherently prejudicial and should be excluded

 absent a sufficiently strong countervailing need for it. Anderson v. Commonwealth,

 supra. We review the trial court's application of this balancing test under the abuse-of-

discretion standard . Davis v. Commonwealth, supra .

A. Evidence that Tim Spied Upon and Abused K. H. should not have been
Admitted .

       Tim first challenges the relevance and probativeness of the evidence that he

spied upon and abused K. H. With respect to relevance, the Commonwealth maintains

that the abuse evidence is relevant to Tim's state of mind, which is an element of both

wanton endangerment (wantonness) and stalking (intention). According to the

Commonwealth, Tim was desperate to prevent the discovery of his acts toward K. H.

and thus desperate to maintain control over his family . That desperation led him to

disregard the serious risk of injury to which he exposed Channin Daugherty and to

purposefully engage in a course of conduct meant to frighten Lori into staying with him.

We agree that his abuse of K. H. would doubtlessly have affected Tim's state of mind

during the period in question and so was relevant to that issue.
        We also agree that the abuse evidence--K. H .'s testimony and the damningly

corroborative evidence of the hidden camera--were sufficiently probative that the

abuse occurred . We are persuaded, however, that the trial court abused its discretion

 by admitting evidence with a grossly prejudicial effect which far outweighs its probative

value. It is true, as the Commonwealth observes, that evidence of a prior wrong may

be admitted when the prior wrong clearly provides a motive for the charged crime and

thus offers substantially probative evidence of the culprit's identity and state of mind . In

Price v. Commonwealth, 31 S .W.3d 885 (Ky. 2000), for example, Price was accused of

murdering his estranged wife . Evidence that he had sexually abused his step-daughter

was deemed admissible where it was also shown that shortly prior to the killing the

murder victim had discovered the abuse and reported it to authorities, thereby denying

Price access to the step-daughter and exposing him to prosecution . The abuse

evidence, the Court explained, was thus inextricably bound up with Price's motive for

the killing.

        In this case, however, the connection between the alleged abuse and the crimes

charged was nowhere near so inextricable or so clearly established . On the contrary,

the evidence tended to show that, entirely apart from the alleged abuse, Tim disliked

the Daughertys and resented what he perceived as their meddling in his marriage, and

he had habitually used intimidation against Lori in his attempts to control her. While

fear of discovery may have joined with Tim's anger and desire for dominance in

bringing about his actions in late July and early August 2005, there was no evidence in

this case, unlike Price, that Lori had discovered the abuse or that Tim even suspected

that she had. The "fear of discovery" motive, therefore, was speculative at best, and



                                             10
 the additional probative value of the abuse evidence was thus extremely limited . On

 the other hand, the abuse evidence was devastatingly prejudicial and virtually certain to

 have a profound effect on the jury. Because of the Commonwealth's limited need for it

 and its overwhelming potential for prejudice, the abuse evidence posed an

 unacceptable risk that Tim would, in effect, be tried for an uncharged crime . In these

 circumstances the trial court abused its discretion by admitting the evidence of K. H .'s

 abuse. The jury's recommendation of the maximum penalty, moreover, suggests at the

 very least a reasonable possibility that the error contributed to the result. The error may

 not, therefore, be deemed harmless. Anderson v. Commonwealth , supra .

 B. Evidence of Tim's Prior Threats Against Lori and Channin was Admissible .

        Because the issues could arise at a new trial, we may also note that otherwise

the admission of evidence concerning the 1996 altercation with the Daughertys and the

acts of intimidation against Lori was not an abuse of discretion . In Davis v.

Commonwealth, we observed that

              [g]enerally, evidence of prior threats and animosity of the
              defendant against the victim is admissible as evidence of
              motive, intent, or identity.

147 S .W .3d at 722 . Here Channin Daugherty and Lori were both victims of Tim's

alleged crimes, and the evidence of his prior threats and violence toward them was

sufficiently probative in both senses discussed above to justify admission. Several

witnesses testified concerning Tim's anger, and the Commonwealth produced a

recording of Channin's 911 call during the car chase, all of which made it abundantly

reasonable for a juror to believe that the acts the victims described actually occurred .

Those acts, moreover, again as noted above, were substantially probative of Tim's
 state of mind during the car chase and during the first week of August 2005 while he

 continued his efforts to force Lori to return. They were also substantially probative of

 Lori's state of mind during that period, which, as the trial court correctly noted, is

 another element of stalking.

        It is true, as Tim argues that several of the alleged prior acts occurred long

 before the summer of 2005, but we have several times observed that the temporal

 remoteness of an alleged prior bad act "bears more heavily on weight than on

admissibility ." Davis v. Commonwealth , 147 S .W .3d at 725. It was not unreasonable

here for the trial court to conclude that evidence of both the 1996 incident with the

Daughertys and the incidents with Lori contributed significantly to an accurate

understanding of the events of July and August 2005 . Indeed, evidence of the couple's

history was reasonably necessary for the Commonwealth to meet its burden of showing

that Tim's July and August acts were not simply those of an overwrought father trying to

contact his children . The probative value of this prior bad acts evidence, therefore,

sufficiently outweighed whatever tendency it may have had to characterize Tim as

habitually angry and aggressive. The trial court did not abuse its discretion by admitting

that evidence .

C. The Reason Lori Objected to Tim's Attendance at the Pool Party Should Not
Have Been Admitted.

       We may note, finally, that an allusion to Tim's prior conviction should not have

been admitted in conjunction with testimony regarding K. H.'s birthday party. As noted

above, Lori testified that she objected to Tim's attendance at the party because she felt

it inappropriate for him to be around adolescent girls . Tim contends that this allusion to

his conviction for molestation improperly suggested to the jury an unspecified prior bad


                                              12
 act. We agree . At retrial, while the fact that Tim and Lori argued over Tim's attendance

 at the party is admissible to show the hostility that existed that day, Lori's reasons for

 objecting should be excluded .

             11. Tim was not Entitled to a Dismissal of the Stalking Charge .

        Tim next argues that the stalking charge should have been dismissed for lack of

 evidence and excluded from the jury instructions . The General Assembly created the

 crime of stalking in 1992. Acts, 1992 c 443 § 1, (effective July 14, 1992). Where there

 is repetitive, threatening behavior, the stalking statutes are intended to allow for

 intervention before the victim has actually been attacked . In its current form, which was

the version in effect at the time of Tim's alleged crime, KRS 508.130 defines "stalk" as

follows:

        (1) (a) To "stalk" means to engage in an intentional course of
               conduct:
                1 . Directed at a specific person or persons;
                2 . Which seriously alarms, annoys, intimidates, or harasses
                    the person or persons; and
                3. Which serves no legitimate purpose.

           (b) The course of conduct shall be that which would cause a
               reasonable person to suffer substantial mental distress.

"Course of conduct," the statute continues,

              means a pattern of conduct composed of two (2) or more
              acts, evidencing a continuity of purpose .

Next, KRS 508.140 makes first-degree stalking a class-D felony and defines the

offense, in pertinent part, as follows:

              A person is guilty of stalking in the first degree,
              (a) When he intentionally:
                  1 . Stalks another person ; and
                  2 . Makes an explicit or implicit threat with the intent to
                      place that person in reasonable fear of:
                      a . Sexual conduct as defined in KRS 510.010 ;
                                              13
                        b . Serious physical injury ; or
                        c. Death; and
                (b) 1 . A protective order has been issued by the court to
                        protect the same victim or victims and the defendant
                        has been served with the summons or order or has
                        been given actual notice .

 To establish that Tim stalked Lori, therefore, the Commonwealth was obliged to prove

 (1) that after August 2, 2005, when Tim was served with Lori's protective order, he (2)

 intentionally threatened Lori, either explicitly or implicitly, so as to place her in fear of

 sexual contact, serious injury, or death, and that he intentionally stalked her, i.e. (3) that

 he engaged in a course of two or more harassing, annoying, alarming or intimidating

 acts directed toward her with (4) no legitimate purpose and which both (5) would have

caused a reasonable person in Lori's position substantial mental distress and (6) did in

fact cause Lori substantial distress .

        The stalking charge was correctly presented to the jury if the evidence permitted

a rational juror to believe all of these elements beyond a reasonable doubt .

Commonwealth v. Benham , 816 S.W .2d 186 (Ky. 1991). Tim maintains, however, that

there was insufficient evidence that after August 2, 2005 he either threatened Lori or

subjected her to an intimidating or harassing course of conduct. We disagree . The

statute requires no more than an implicit threat, and a rational juror could have believed

that Tim's dire threats on August 6, 2005 against the Daughertys, which were conveyed

to the Daughertys and to Lori by Ron Harmon, implicitly threatened Lori, as well as the

Daughertys, with serious injury or death for her act of separation. There was ample

evidence, moreover, that the course of intimidating conduct Tim began on July 31,

2005-the car chase, the harassing phone calls, the phone calls to family members and

acquaintances, the use of surveillance to appear unexpectedly where Lori was, and the


                                               14
 removal of Lori's van-continued to and beyond August 2, 2005. In particular, a

 rational juror could have believed that Tim's continuing concealment of the van, his

August 6 threat, his pestering Lori's family and acquaintances with phone calls

threatening the destruction of Lori's property, and his ransacking of their residence and

leaving a axe in Lori's bedroom, were all acts directed ultimately at Lori, were acts

occurring, continuing, or communicated to Lori after August 2, 2005, and were

harassing acts without legitimate purpose that would have seriously distressed a

rational person and that did in fact distress Lori, particularly in light of her prior

experience with Tim's temper. The trial court did not err, therefore, when it refused to

dismiss the stalking charge .

             111. The Jury Instruction on Stalking was Reversibly Flawed .

       Finally, Tim contends that even if a stalking instruction was appropriate, the

instruction the trial court gave misstated the law and allowed for a non-unanimous

verdict. The instruction-"Instruction No . 3, Stalking in the First Degree'-provided as

follows:

              You will find the defendant, Timothy Paul Heil, guilty under
              this Instruction if, and only if, you believe from the evidence
              beyond a reasonable doubt, all of the following :
              (A) That in this county, between the 30th day of July, 2005
              and the 12th day of August, 2005, the defendant :
                  (1) Intentionally stalked Lori Heil ; AND
                  (2) Explicitly or implicitly threatened Lori Heil with the
              intent to place her in reasonable fear of sexual contact,
              serious physical injury, or death ; AND
              (B) (1) That when he did so, he knew that a protective order
              had been issued against him by the Jefferson Family Court
              to protect Lori Heil from such conduct.

           A. The Jury Instruction did not Misstate the Stalking Statute.

      Tim contends, first, that by directing the jury in part (A) to consider conduct

                                              15
 occurring prior to August 2, 2005, the instruction misstated the law that stalking must

 (under the facts of this case) follow notice of a protective order. Tim did not preserve

 this issue by making a timely objection at trial, and without a more fully developed

 record we are unable to say that the trial court erred in this regard at all, much less that

 it palpably erred . Part (A) merely tracked the indictment, which identified the period of

time during which all of the alleged charges occurred . Part (B)(1) made it sufficiently

clear that the stalking offense pertained only to that portion of the period following Tim's

receipt of the protective order, and defense counsel's closing argument guarantees that

the jury understood that point . Tim is not entitled to relief on this ground

             B. The Jury Instruction Permitted a Non-unanimous Verdict.

        Tim also maintains that the instruction was flawed by permitting the jury to reach

a non-unanimous verdict . This objection was properly preserved. The trial court's

instruction was based upon the pattern First-Degree Stalking instruction in Cooper and

Cetrulo, Kentucky Instructions to Juries, Fifth Edition, § 3.63 (2006). Part A . (2) of the

pattern instruction provides that the defendant "explicitly or implicitly threatened [victim]

with the intent to place [victim] in reasonable fear of [sexual contact] [(or) serious

physical injury] [(or) death]." The pattern instruction thus expressly indicates that only

those alternatives supported by the evidence should be included in the instruction as

given . The trial court's instruction included all three alternatives .

       As Tim correctly notes, under Ky. Const. § 7, a defendant cannot be convicted of

a criminal offense except by a unanimous verdict . Burnett v. Commonwealth , 31

S .W.3d 878 (Ky. 2000). This Court has explained that

              a "combination" instruction permitting 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
                                               16
                 there is evidence to support a conviction under either theory .
                 . . . Otherwise, the verdict cannot be shown to be unanimous
                 and the conviction must be reversed .

 Miller v. Commonwealth , 77 S.W .3d 566, 574 (Ky. 2002) (citation omitted) . Tim

 contends that the combination instruction here violated his right to a unanimous verdict

 because there was no evidence to support the theory that he threatened Lori with

 sexual contact . We agree.

         Indeed, while there was ample evidence in this case that Tim's anger had often

 led to acts of property destruction and threats of violence and that after August 2, 2005

 he had made a serious threat of injury or death against Lori, there was no evidence

whatsoever that Tim had ever subjected Lori to unwanted sexual contact or that he

threatened to do so during the events at issue . Even if the allegations regarding K. H.

had been admissible, moreover, those allegations in no way tended to show that Tim

had sexually threatened Lori. The sexual-threat "theory" of the case was nothing but

speculation . By including the unsupported sexual-threat stalking instruction, therefore,

the trial court violated Tim's right to a unanimous verdict, and because the denial of a

unanimous verdict generally is not subject to harmless error analysis, Burnett v.

Commonwealth , supra, Tim's stalking conviction must be reversed on this ground as

well .

                                            CONCLUSION

         In sum, although Tim is not entitled to a dismissal of the stalking charge, his trial

was reversibly marred by the introduction of collateral and unduly prejudicial evidence

that he had abused his adopted daughter, and by the inclusion in the jury instructions of

an unsupported theory of stalking. We are obliged, accordingly, to reverse the January



                                               17
25, 2007 Judgment of the Jefferson Circuit Court in its entirety and to remand for

additional proceedings consistent with this opinion . Evidence that Tim abused his

adopted daughter should not be admitted at a new trial, and unless the evidence

includes proof of a sexual threat against Lori during the relevant period, the jury

instructions should not include the sexual-threat theory of stalking.

       All sitting . All concur



COUNSEL FOR APPELLANT :

Elizabeth B. McMahon
Assistant Public Defender
Office of the Jefferson District Public Defender
200 Advocacy Plaza
717-719 West Jefferson Street
Louisville, KY 40202

Frank Wm . Heft, Jr.
200 Theatre Building
629 Fourth Avenue
Louisville, KY 40202

COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

Samuel J. Floyd, Jr.
Assistant Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601-8204
