        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   NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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
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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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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                                                  RENDERED : AUGUST 26, 2010
                                                       NOT TO BE PUBLISHED

                  SixyrrMr C~aixrf of                  tit
                               2008-SC-000804-MR

                                                          DAT . .--            Aaa
 PAUL D . YORK, SR .



                  ON APPEAL FROM BULLITT CIRCUIT COURT
V                 HONORABLE RODNEY D . BURRESS, JUDGE
                             NO . 08-CR-00145



COMMONWEALTH OF KENTUCKY                                                APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING


      Appellant, Paul D . York, appeals from a Judgment of the Bullitt Circuit

Court, entered upon a jury verdict, convicting him of complicity to burglary,

second degree and of theft by unlawful taking, more than $300 .00 . Appellant

was also found to be a first-degree persistent felony offender (PFO 1) . He was

sentenced to ten years imprisonment for the burglary conviction and five years

imprisonment for the theft conviction, enhanced to ten years by his PFO 1

status, with the two ten-year sentences ordered to run consecutively for a total

of twenty years . Appellant appeals to this Court as a matter of right . Ky.

Const. § 110(2) (b) . He argues that the trial court erred in refusing his tendered

instruction on attempted theft by unlawful taking . Additionally, he raises three

claims of error concerning the penalty phase of his trial; namely, that the
 introduction of his prior convictions through testimony by an Assistant

 Commonwealth's Attorney prejudiced him; that one of the previous convictions

 utilized to establish his PFO1 status was not valid ; and that he was prejudiced

 by improper closing arguments made by both the Commonwealth and his co-

 defendant's counsel. Finding no merit to Appellant's contentions, we affirm his

convictions and sentence .

                               RELEVANT FACTS

       Appellant's convictions stem from events occurring on April 3, 2008,

when detectives with the Bullitt County Sheriff's Office responded to a report of

a residential burglary. Appellant's accomplice, Kenneth Huffman, was sitting

in the get-away vehicle on the side of the road . When the detectives arrived

and began to exit the vehicle, Huffman sped off. One of the detectives pursued

him and the other stayed behind to investigate the residence. As the detective

approached the house, he saw a footprint on the side of the door and observed

that the lock was splintered, suggesting that it had been kicked in . The

detective drew his weapon and pushed the door open whereupon he discovered

Appellant coming down the hallway, carrying a clipboard in one hand and a red

sack in the other . When the detective ordered Appellant to get on the ground,

he complied . The detective restrained Appellant until backup arrived.

      Meanwhile, the second detective pursued Huffman, who sped out of the

subdivision on the wrong side of the road. With the aid of city police officers,

Huffman was soon forced to stop his vehicle . In response to the detective's

questions, Huffman stated that he had been at the subject residence to fix a
 leaky roof and that he (did not know Appellant However, a search of Huffman

 and Appellant revealed that each was carrying the same kind of walkie-talkie

 tuned to the same channel.

       The victim, Jeremy Heffernan, was at work during the burglary, but he

 later identified the red sack as a pillowcase from his bed . He identified the

 property discovered inside the pillowcase as his wife's jewelry, his

 grandmother's silverware, and a case of six watches . At trial, Heffernan

 testified that the value of the watches was $750 .00 and the silverware was

 worth $500.00 .

       Appellant was indicted for complicity to second-degree burglary,

complicity to theft by unlawful taking over $300.00, and for being a persistent

felony offender, first-degree (PFO 1) . Ajury found Appellant guilty of all three

offenses and recommended an enhanced sentence of twenty years on each of

the two felonies, to run consecutively for a total of forty years. The trial court

properly lowered each sentence to the statutory maximum calculated under

Kentucky Revised Statutes (KRS) 532 .1 10(l) (c), a total of twenty years

imprisonment, and entered judgment that was otherwise in accord with the

jury's verdict. In his matter-of-right appeal Appellant raises the four claims of

error noted above .

                                    ANALYSIS

      The Trial Court Properly Declined to Instruct the Jury on
      Attempted Theft By Unlawful Taking

      Appellant contends that the trial court erred in denying his request for
an instruction on attempted theft by unlawful taking. Because Appellant never

exited the residence with the stolen items, he asserts that the jury could have

believed that the theft was not completed and, therefore, could have found him

guilty only of an attempt to commit the underlying crime.

      A trial court is duty-bound to instruct the jury on the whole law of the

case, including any applicable lesser included. offenses . Houston v.

Commonwealth, 975 S .W.2d 925 (Ky . 1998) . Whether a lesser included

instruction is required depends on whether there is an evidentiary basis to

support it. Id. A defendant's entitlement to a lesser included instruction

depends upon whether, "considering the totality of the evidence, the jury might

have a reasonable doubt as to the defendant's guilt of the greater offense, and

yet believe beyond a reasonable doubt that he is guilty of the lesser offense ."

Id. at 929 (citing Wombles v. Commonwealth, 831 S .W.2d 172 (Ky. 1992)) .

Consequently, we must determine whether a jury could have had reasonable

doubt of Appellant's guilt of theft by unlawful taking, but could have believed

that Appellant was guilty of the attempt of that crime .

      With respect to movable property, the offense of theft by unlawful taking

is committed when a person unlawfully "[flakes or exercises control over

movable property of another with intent to deprive him thereof." KRS

514 .030(1) (a) . Criminal attempt of an offense is committed when :

            A person . . . acting with the kind of culpability
            otherwise required for commission of the crime . . . (a)
            [i]ntentionally engages in conduct which would
            constitute the crime if the attendant circumstances
            were as he believes them to be ; or (b) [i]ntentionally
            does or omits to do anything which, under the
             circumstances as he believes there to be, is a
             substantial step in a course of conduct planned to
             culminate in his commission of the crime .

KRS 506 .010. Appellant submits that because he did not leave the residence

with the items he was carrying, a jury could have found that he had taken a

substantial step in the course of the theft, but did not complete the act.

However, the trial court properly rejected Appellant's tendered instruction on

attempt, pointing out that theft by unlawful taking merely required. that

Appellant take or exercise control over the property . See KRS 514 .030 (1) (a) .

To support Appellant's requested instruction, there must have been evidence

from which the jury could have believed that Appellant intended to deprive

Heffernan of his property, but did not actually take it or exercise control over it .

While it is true that Appellant did not leave the residence with the stolen items

because he was apprehended inside, he had selected the items, deposited them

in a pillow case, and carried them out of the room in which he found them .

Accordingly, it is illogical that a fury would find that Appellant intended to

deprive Heffernan of the items but had not taken or exercised control over

them. As such, the trial court properly rejected Appellant's requested

instruction on attempted theft by unlawful taking .

II.   Introduction of Appellant's Prior Convictions through an
      Assistant Commonwealth Attorney Did Not Constitute Reversible
      Error

      To establish Appellant's status as a first-degree persistent felony

offender, certified copies of two prior felony conviction judgments, one from

Owen Circuit Court and one from Boone Circuit Court, were introduced into
evidence. The Commonwealth called an Assistant Commonwealth's Attorney to

read the prior judgments into the record . Appellant objected on grounds that

the attorney was not the custodian of the records nor could he testify to the

procedures concerning the preparation or maintaining of the records . The trial

court correctly rejected Appellant's argument and allowed. the Assistant

Commonwealth's Attorney to read the judgments into the record . "Pursuant to

IKRE 1005, a certified copy is self-authenticated and does not require

testimonial declarations of its verity." Skimmerhorn v. Commonwealth, 998

S .W .2d 771 (Ky. App . 1998) . See also Montgomery v. Commonwealth, _ S .W.

3d - (Ky . March .18, 2010) . Accordingly, it was unnecessary that the attorney

have personal knowledge of the authenticity of the judgments as a prerequisite

to testifying to their contents.

      Before this Court, Appellant appears to have abandoned the grounds

that he asserted to the trial court and, instead, argues that he was prejudiced

by the Commonwealth's use of an Assistant Commonwealth's Attorney to

testify to the prior convictions because of the "authority, prestige and gravitas"
   his official
of              position- Appellant's failure to cite the latter grounds as a basis

for his objection in the trial court renders the argument unpreserved . Henson

v. Commonwealth, 20 S .W.3d 466 (Ky. 199S) . Moreover, Appellant's assertion

that the resulting prejudice was demonstrated by the jury's recommendation of

the maximum sentence is unpersuasive because the Assistant

Commonwealth's Attorney merely read from the judgments, without comment,
 after the judgments were admitted into evidence . As such, Appellant's

 argument in this regard must fail.

 III .   The Judgment of Conviction From Boone Circuit Court Was
         Properly Admitted to Establish Appellant's Status as a Persistent
         Felony Offender

         Next, Appellant asserts that the judgment of conviction from Boone

Circuit Court should not have been used to establish his PFO status because it

was not a valid conviction . Specifically, Appellant objected to the judgment

being admitted, arguing that although he had pled guilty to second-degree

burglary, the indictment had been for first-degree robbery. Appellant reasoned

that because he was ultimately convicted of a crime for which he was not

indicted, the resulting conviction was invalid . Appellant filed an RCr 11 .42

motion for relief from the conviction in Boone Circuit Court, which he attached

to a motion in limine filed in the Bullitt Circuit Court to attempt to prevent

admission of the conviction . Nevertheless, the trial court properly denied

Appellant's motion in limine and allowed the prior judgment of conviction to be

admitted .

         While a pending direct appeal from a judgment of conviction serves to

suspend the judgment, preventing its use to establish PFO status, collateral

attacks do not prevent a judgment of conviction from being used to prove PFO

status . Melson v. Commonwealth, 772 S .W.2d 631 (Ky . 1989) . When either the

period for filing a direct appeal has expired or a conviction has been affirmed

on direct appeal, the conviction is deemed final for purposes of proving a prior

conviction under the persistent felony offender statute, KRS 532 .080 . Id. As
 the time for pursuing a direct appeal from the Boone Circuit Court conviction

 expired, without appeal having been taken, the conviction was permissibly

 admitted to prove Appellant's status as a persistent felony offender.

 IV.   Nothing in Closing Arguments During Penalty Phase Was
       Improper

       Appellant's final claim of error concerns closing arguments of the

 Commonwealth and of his co-defendant's counsel . With respect to the

argument of his co-defendant's counsel, Appellant cites to that portion of

counsel's argument that sought leniency for her client by distinguishing him

from Appellant based on Appellant's more recent criminal history . In so doing,

counsel reiterated the two prior felony convictions that had been introduced

against Appellant and explained that Appellant's "last" two convictions were in

2005 and 1999, while her client's last conviction was thirteen years prior.

Appellant objected to this part of the argument, asserting that counsel was

implying that Appellant had more than two prior convictions, which was a

mischaracterization of the evidence given that only two prior convictions had

been introduced . The trial court overruled the objection, finding that counsel's

statement was correct because the two prior convictions referenced were

Appellant's "last" two even if they were also his only two prior convictions .

While this issue initially appears to have some merit, given the common

impression that "last two" implies there were others preceding, the record does

not support Appellant's suggestion that he had only two prior convictions .

Specifically, Appellant's first judgment of conviction, the Owen County

judgment, included a conviction for possession of a handgun by a convicted
felon, meaning that before the Owen County conviction (which was followed by

the 2005 Boone County conviction) Appellant had previously been convicted .

Thus, there was evidence of record, albeit inferential, that Appellant had more

than two prior felony convictions . We, thus, agree with the trial court that

counsel's argument was not improper although our conclusion is premised on

the fact that the co-defendant's counsel did not really mischaracterize the

evidence .

      Appellant also complains that the Commonwealth's closing argument

contained an improper reference . Specifically, after submitting to the jury that

the Commonwealth had proven Appellant's two prior convictions for PFO

purposes, the Commonwealth stated :

             There is no evidence before the court that those
             convictions aren't good convictions or that the
             information contained therein is not absolutely
             accurate . There is no challenge to it.

Appellant objected and argued that he had, in fact, challenged one of the prior

convictions . The trial court overruled the objection. Again, we must agree with

the trial court's ruling. Although Appellant challenged one of the prior

convictions in a motion in limine, the trial court overruled that motion.

Accordingly, the Commonwealth's statement was accurate because no

challenge to the convictions had been made before the jury; rather, the trial

court's previous ruling on the motion in limine determined that, as a matter of

law, Appellant had not presented a legitimate challenge to use of the prior

conviction for a PFO charge .
      Counsel is given great leeway in the presentation of closing arguments .

Foley v. Commonwealth, 953 S .W.2d 924 (Ky. 1997) . Appellant has failed to
show that any improper comments were encompassed in the closing argument

of either the Commonwealth or his co-defendant's counsel .

                                 CONCLUSION

      Appellant was not entitled to an instruction on attempted theft by

unlawful taking . There was no reversible error in the Assistant

Commonwealth's Attorney's testifying to the contents of Appellant's prior

judgments of conviction . Likewise, there was no error in the admission of the

Boone Circuit Court prior conviction despite a pending collateral attack . And,

finally, neither the Commonwealth nor counsel for Appellant's co-defendant

made improper closing arguments. Accordingly, Appellant's convictions and

sentence are affirmed.

      All sitting. All concur.
COUNSEL FOR APPELLANT:

Samuel N . Potter
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

Perry Thomas Ryan
Assistant Attorney General
Office Of The Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
