         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    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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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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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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                                                             RENDERED : APRIL 24, 2008
                                                                ,NOT TO BE PUBLISHED


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                                    2007-SC-000176-MR




                      ON APPEAL FROM GREENUP CIRCUIT COURT
 V.                    HONORABLE ROBERT B. CONLEY, JUDGE
                                   04-CR-00149


 COMMONWEALTH OF KENTUCKY                                                       APPELLEE


                        MEMORANDUM OPINION OF THE COURT

            AFFIRMING IN PART AND REMANDING FOR RE-SENTENCING


        Appellant Wayne Calvin Murphy was found guilty of first-degree rape, first-

degree assault and first-degree robbery by a Greenup Circuit Court jury. He was

sentenced to life in prison on the rape conviction and twenty years each on the assault

and robbery convictions . He appeals to this Court as a matter of right, asserting four

errors : 1) that the trial court erred by admitting testimony concerning microscopic hair

analysis ; 2) that the Appellant was unfairly prejudiced when the trial court erroneously

admitted evidence about the results of a presumptive blood test; 3) that the trial court

erred by denying Appellant's motion for a directed verdict of acquittal due to insufficient

evidence to sustain a conviction on the charges ; and 4) that the trial court erred by

ordering that the Appellant's sentences be served consecutively, rather than

concurrently . For reasons stated herein, we affirm in part and remand to the trial court

for re-sentencing .
        On the afternoon of July 14, 2004, Jane Doe' was working at her long-time place

 of employment, the Superstar Video store in Russell, Kentucky.      A man entered the

 store and after looking around, made his way to an employee-only area in the back of

 the store . Ms. Doe told the man he was not allowed in that area, whereupon he cursed

 at her and left the store . She then began cleaning the store.

        Shortly thereafter, a second man entered the store. He attempted to rent a

 movie, but was told by Ms . Doe he would first have to establish a membership with the

 store . This man, Ryan Dixon, gave his driver's license to Doe, and she entered his

 biographical information into the store's computer. Dixon left with his movie after telling

 Doe he was going to go talk to a friend, but indicated to Doe he would return to select

 another movie.

        Doe had resumed cleaning the store when she heard the scuffling of boots

across the floor. Before she could react, Doe was struck on the back of the head . Doe

was then dragged to the office area in the back of the store by Dixon and the man who

had entered the store earlier, the man Doe would later identify as the Appellant, Wayne

Calvin Murphy. Doe testified that Murphy beat her severely and demanded that she

open the safe .   Murphy kicked Doe in the stomach when she told him there was no

money in the store's safe because she had just made a bank deposit . Doe further

testified that when Murphy saw a picture of Doe's son he told her he would go to her

house and cut her son's throat if she did not open the safe .

       Doe testified that she attempted to escape after Murphy demanded the ring she

was wearing. She threw the ring and ran, scrambling up the store's shelves in an



      1 The victim's name has been change in an attempt to protect her privacy.
 attempt to climb through the drop ceiling and into a bathroom. But Murphy grabbed Doe

 by the hair and dragged her into a back room where, armed with a hammer, he violently

raped Doe while Dixon held her down. Doe testified that after the rape, Murphy told her

"kiss your ass goodbye and pray you go to heaven," before striking her viciously atop

her head with the hammer.

       Doe was discovered nude and bleeding by a customer who telephoned 911

telling the dispatcher that Doe was bleeding profusely with bone protruding from her

skull. Doe suffered a near-fatal subdural hematoma in addition to abrasions and

contusions to the arms, shoulders and vaginal area . Doe has undergone five surgeries

arising from the injuries suffered in the attack .

       Detective Tim Wilson of the Russell Police Department testified at trial that Dixon

was immediately identified as a possible suspect because his personal information was

still on the video store's computer when police arrived . This information would help lead

the police to Dixon who implicated Murphy. Murphy was arrested two days later.

       1.     HAIR ANALYSIS

       Appellant claims that the trial court erred when it permitted expert opinion

testimony as to microscopic hair analysis . Appellant claims that hair analysis evidence

is too unreliable and too prejudicial to be admitted at trial . When Appellant's trial

counsel objected, the trial court overruled the objection, but asked Appellant's attorney if

she desired a Daubert hearing on the issue. Appellant's trial counsel declined this offer.

       Hair comparison by microscopic analysis has been admissible in Kentucky courts

for many years. This Court has recognized that microscopic hair analysis has been

"overwhelmingly" accepted in other jurisdictions and has authorized Kentucky trial
 courts to "take judicial notice that this particular method or technique is deemed

 scientifically reliable . ,2 Much of the authority cited in Appellant's brief is for the

 proposition that microscopic hair analysis alone, unlike modern DNA testing, is not a

 basis for positive personal identification . This was acknowledged by the

 Commonwealth's expert during defense counsel's cross-examination, along with other

 limitations inherent in such evidence .

        The admissibility of evidence at trial is within the sound discretion of the trial

court. The hair analysis evidence, as in Johnson, was admissible to show that the

Appellant was not excluded as the source of the hair found at the crime scene. Such

evidence was particularly relevant where among the defenses asserted at trial,

Appellant contended that he was not at the video store on the day in question and that

someone else4 committed the crimes. Furthermore, similarities between the Appellant's

hair and the hair found at the crime scene are relevant circumstantial evidence to be

considered alongside all other admissible evidence and accorded the weight deemed

appropriate by the jury. While hair comparison evidence is far from conclusive, the trial

court did not abuse its discretion in admitting the evidence at trial .

       II .    BLOOD TEST EVIDENCE

       Appellant's second claim of error arises from the trial court's decision to allow

testimony by the Commonwealth's expert witness that substances found on and about

Appellant were blood . At trial, forensic biologist Shannon Phelps testified as to tests

conducted on the clothing worn by Appellant at the time he was arrested, two days after


      2 Johnson v. Com ., 12 S .W.3d 258, 263 (Ky. 1999).
      3 Ford v. Com., 665 S .W.2d 304 (Ky. 19884).
      4 John Barger, discussed infra.
 the crime was committed . Over Appellant's objection, Phelps testified that Murphy's

 shoes tested positive for the presence of blood . However, the blood sample on the

 shoe was too small to go to further DNA testing or even to determine whether the

 substance was human or animal blood . Because of this uncertainty, the Appellant

 claims that testimony regarding results of the test was unreliable and that he was

 prejudiced by its admission at trial .

           Kentucky case law holds that the trial court has broad discretion with respect to

 determining the admissibility of evidence . An appellate court will not disturb the trial

 court's exercise of discretion to admit or exclude evidence except upon a showing of

abuse of discretion .

           In the trial court's view, the testimony as to the presumptive blood test was

relevant due to the possible presence of human blood on the Appellant's shoes making

it somewhat more likely that he was involved in the violent assault . Defense counsel

capably took advantage of the slight value of this evidence and highlighted the

limitations of the presumptive blood testing upon cross-examination. While such

evidence may prove very little, deficiencies in this type of evidence go to the weight

assigned to it by the jury, not to its admissibility . Thus, it cannot be said the trial court's

decision to admit the evidence was an abuse of discretion .

          III .   DIRECTED VERDICT

          Appellant's third claim of error is that he should have been a granted a directed

verdict on all counts at the close of the Commonwealth's case-in-chief. Appellant


          5 Owensboro Mercy Health Systems v Payne, 24 S .W.3d 675, 677 (Ky. App.
1999) .
          6 Fugate v. Com. , 993 S .W .2d 931, 935 (Ky. 1999) .
 argues that because there was no admissible scientific evidence to support what

 Appellant characterizes as "unreliable eyewitness testimony," a directed verdict in

 Appellant's favor was required . Specifically, Appellant claims the victim's eyewitness

 testimony, and the so-called "snitch" testimony of Donald Eugene Howard and John

 Barger are insufficient to support a conviction . Nonsense .

        Appellant claims that the victim's own eyewitness testimony was unreliable. In

 support of this proposition, Appellant cites to anecdotal information from unrelated

 cases and statistics from the Innocence Project regarding overturned convictions based

 on erroneous eyewitness identification . However, none of this has any direct

 relationship to the specific facts and circumstances of this case. In fact, the record

reflects that the victim had substantial, protracted face-to-face interaction with the

Appellant during the course of the robbery, rape and assault .

        Donald Eugene Howard shared a jail cell with the Appellant in the days following

Appellant's arrest. At trial, Howard testified that the Appellant admitted to him that the

Appellant was. present when the crime was committed, but otherwise Dixon was solely

responsible for the victim's injuries. Howard further testified that he had received no

consideration from the Commonwealth in exchange for his testimony.

       John Barger arrived on the crime scene after the police arrived . Eventually, he

told the police that he walked in on the crime scene inadvertently when he stopped to

inquire about possible employment at the video store . Barger testified that when he

entered the store he saw Dixon and the victim who was on her hands and knees, naked

from the waist down, and bleeding profusely . Barger testified that he saw a second

man, who he identified as the Appellant, emerge from the back room and drag the
 victim by her hair towards the back room . Barger claimed he left the store out of fear for

the safety of his own family who were waiting for him in their car. At trial, the defense

characterized Barger as an alternate suspect and on appeal attempts to marginalize his

testimony as unreliable "snitch" testimony. However, it is the province ,of- the jury to

assess the credibility of witnesses and the weight to assign to their testimony .'

        In ruling on a motion for directed verdict, the trial court must draw all fair and

reasonable inferences from the evidence in favor of the Commonwealth to determine if

the evidence is sufficient to induce the jury to believe beyond a reasonable doubt that

the defendant is guilty .$ On appeal, the test is "if under the evidence as a whole, it

would be clearly unreasonable for a jury to find guilt" then the defendant is entitled to a

directed verdict9 A review of the evidence presented in this case reveals that the trial

court properly determined that a reasonable jury could find guilt beyond a reasonable

doubt. As such, there was no error.

       IV.    SENTENCING

       On February 15, 2007, an order by the trial court was entered amending the

judgment against Appellant to require that the sentences imposed must be run

consecutively in accordance with the jury's verdict from the penalty phase of the trial .

Appellant claims for the first time on appeal that this sentence is improper . In its brief,

Appellee takes the position that since the Appellant did not preserve the sentencing




        Roark v. Com., 90 S .W .3d 24 (Ky. 2002) .
      8 Penman v. Com., 194 S .W .3d 237, 247 (Ky . 2006).
      9 Com . v. Benham, 816 S .W.2d 186,187 (Ky. 1991) .
 issue, there is nothing for this Court to review. However, this Court has recognized that

sentencing issues may be raised for the first time on appeal . 1o

        Since this claim of error was not preserved, it must be reviewed under the

palpable error - stalldard and be shown to prevent manifest injustice ." For an error to be

palpable, it must be "easily perceptible, plain, obvious and readily noticeable .

Palpable error exists when the reviewing court believes there is a substantial possibility

that the result in the case would be different without the error. 13

        Under Kentucky law, when multiple sentences are imposed for multiple crimes,

definite sentences must run concurrently with indefinite sentences . 14 Furthermore, both

definite and indefinite sentences are satisfied by service of the indeterminate term . 15

Additionally, this Court has stated that "no sentence can be ordered to run consecutively

with such a life sentence in any case, capital or non-capital . "16 Accordingly, Appellant

suffered obvious prejudice and manifest injustice by being sentenced to a term of

imprisonment greater than permitted by law. For the foregoing reasons, we affirm the

convictions, but vacate Appellant's sentence and remand the case to Greenup Circuit

Court with instructions to sentence Appellant in accordance with the requirements of

K .R.S . 532 .110(1)(a) .



       10 Cumminqs v. Com ., 226 S .W.3d 62, 66 (Ky. 2007).
       11
          RCr 10.26 .
       12
           Burns v. Level, 957 S .W .2d 218, 222 (Ky. 1997)(citin BLACK'S LAw DICTIONARY
(6th ed . 1995)).
       13
            Schoenbachler v. Com ., 95 S .W .2d 830, 836 (Ky. 2003).
       14   K .R .S. 532 .110(1)(a) .
       15
            Ibid .
       16
            Bedell v. Com ., 870 S .W.2d 779 (Ky. 1993).
        All sitting . All concur.




COUNSEL FOR APPELLANT :

Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601



COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

George G . Seelig
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
