                                  '




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                                                           NOT TO BE PUBLISHED


                ~upu~o~,ilttttfi [Mffi\[L
SHAUN HILES


                 ON APPEAL FROM GRANT CIRCUIT COURT
V.           HONORABLE GREGORY M BARTLE'IT, SPECIAL JUDGE
                            NO. 14-CR-00213


COMMONWEALTH OF KENTUCKY                                                     APPELLEE



                    MEMORANDUM OPINION OF THE COURT

                                      AFFIRMING

       Appellant, Shaun E. Hiles, appeals from ajudgment of the Grant C~cuit

Court convicting him of two counts of murder and two counts of first-degree

wanton endangerment. As a result of these convictions Appellant was

sentenced to imprisonment for life without the possibility of'parole on each of

the two murder convictions and tQ a term of imprisonment for five years on

each wanton endangerment charge.I




        1 The judgment reflects that the wanton endangerment sentences are to be
served consecutive to. one another. The judgment is silent with respect to the running
of the life sentences. However by operation of law, such sentences run concurrently
with other simultaneously imposed sentences. "(N]o sentence can be ordered to run
consecutively with such _a life sentence in any case, capital or non-capital." Bedell v.
Commonwealth, 870 S.W.2d 779, 783 (Ky. 1993). ·
      As grounds for appellate relief, Appellant raises the following six

arguments: (1) the Commonwealth elicited inadmissible opinion testimony

concerning whether he was acting under extreme emotional disturbance (EED)

at the time of the shootings; (2) he was prejudiced by improper testimony

describing him as being upset and cursing in the hours preceding the crime;

(3) the prosecutor engaged in improper closing arguments by misstating the

applicable EED law and arguing facts not in evidence; (4) he was unduly

prejudiced during the penalty phase of the trial by misleading jury instructions

and arguments of the prosecutor suggesting that if an aggravating factor was

found, the only authorized sentences were life without parole or life without

parole for twenty-five years; (5) the evidence was insufficient to convict on the

wanton endangerment charges; and (6) the convictions on the two wanton

endangerment charges are barred by double jeopardy because they merged into

the murder convictions.

      Only the sixth allegation of error was preserved for appellate review; for

all other alleged errors Appellant seeks palpable error review under RCr 10.26.

For the reasons explained below, we affirm all of the convictions.


                I. FACTUAL AND PROCEDURAL BACKGROUND

      In the weeks preceding the deaths of Nicole·Hiles and Larry Whiteker,.

Appellant and Nicole experienced serious marital discord and their fifteen-year

marriage was in jeopardy.. Nicole became romantically involved with Whiteker.

Evidence presented at trial demonstrated that Appellant was very upset about



                                        2
that and that he was preoccupied with their relationship to the extent that he

monitored their whereabouts.

      After Nicole moved out of the marital residence, Appellant threw her

belongings onto the lawn and challenged her to come retrieve them. Police were

called to keep the peace. Appellant also posted social media messages stating

that he had discovered that Nicole was seeing someone else and that "the war

has began." On the day of the crimes, Appellant sent intimidating text

messages to Nicole. He removed the door handles from Nicole's car and

challenged her to come get them. He also made hostile statements about the

situation to others. Also on that day, Nicole sought an emergency protective

order against Appellant. That evening, Nicole met Whiteker at his workplace

and the two left together in Whiteker's truck. At about the same time,

Appellant was seen speeding and driving recklessly in his SUV.

      A short time later, witness Deborah Collins came upon the scene of the

crimes. She found Appellant's SUV, with smoke coming from its engine,

crashed into the rear passenger's side ofWhiteker's truck. Appellant stood on

the ground near his truck, wounded but alive. Collins could see the bodies of

Nicole and Whiteker slumped over inside of the truck; both were dead of

gunshot wounds. Collins called 911 and while she was on the phone with the

dispatcher, Appellant told her, "I killed my wife [and] I shot the homewrecker in

there." He also told Collins that he had shot himself. Before being taken to the

hospital for treatment, Appellant admitted to police that he had killed Nicole

and Whiteker.

                                        3
      Investigators concluded that Appellant had crashed his vehicle into the

rear quarter panel of Whiteker's pickup, forcing it to spin around and come to a

stop. The Commonwealth theorized that Appellant then fired several shots at

Nicole and Whiteker, killing them before shooting himself twice, once in the left

side of his chest and once in the abdominal area. Appellant survived the self-

inflicted wounds, however his colon was destroyed and he has a permanent

colostomy.

      Appellant was charged with two counts of murder, a capital offense,2 and

two counts of wanton endangerment, a Class D felony. Appellant does not

deny that he fired the ·shots that killed his wife, Nicole, and her friend, Larry

Whiteker. Instead, he claimed that his crime was mitigated because he acted

under the influence of an extreme emotional disturbance (EED). The jury

rejected his EED defense; he was convicted of all charges and sentenced as

noted above. This appeal followed as a matter of right.


          II. OPINION TESTIMONY CONCERNING WHETHER APPELLANT

          WAS ACTING UNDER EED AT THE TIME OF THE SHOO.TINGS

      Appellant's first argument is that "the Commonwealth repeatedly elicited

inadmissible opinion testimony and legal conclusions that [Appellant] was not

acting under EED." Appellant concedes that this issue is not preserved but

requests review for palpable error under RCr 10.26. Appellant cites the

testimony of four witnesses: Police Officer 'Tony Stigers; Officer Brian Cochran,



      2   The Commonwealth did not seek the death penalty.

                                          4
a crime scene specialist; Dr. Timothy Fritz; at].d Paramedic Ken Ball. We begin

with a summary of the cited testimony.

A. Officer Stigers

      Officer Stigers was one of the police officers who responded to the crime

scene. His testimony for the Commonwealth recounted his investigatory

activities on the night of the crimes. On cross-examination, Appellant's

attorney asked Stigers if he could ascertain Appellant's state of mind during

the shooting. Stigers responded that he could not say whether Appellant was

acting under EED at the time of the shooting.

      Upon redirect, to follow-up on that line of inquiry, the Commonwealth

asked the following:

      Commonwealth: So let's deal with that, in your investigation. Did I
      understand you to testify that Shaun Hiles, immediately after he killed
      these two people, was calm in his demeanor?

      Stigers: Yes, Sir.

      Commonwealth: He was not showing any emotions?

      Stigers: No, Sir.

      Commonwealth: He didn't cry to you that I became enraged, and I was
      out of my mind when I shot and killed these people, did he? In fact, he
      coolly and calmly told you that he had just killed two people, is that
      correct?

      Stigers: That's correct.

      Appellant also cites as improper the section of Stiger's testimony in

which the Commonwealth elicited Stiger's opinion that, because Appellant tore

off the door handles of Nicole's car and bragged about it, he must have acted

intentionally when he shot Nicole and Whiteker.
                                         5
B. Officer Cochran

      Officer Cochran is a crime scene specialist who investigated the shooting.

Cochran surmised upon direct examination that there had been a

"concentrated line of [gun] fire" directed toward the two victims. On cross-

examination, Cochran explained that he was not testifying about Appellant's

state of mind, only the direction of the gunfire.

      Then, upon re-direct and in response to Appellant's inquiry, the

Commonwealth asked Cochran how he might go about determining someone's

mental state:

      Cochran: There's a lot of background information that goes in. It's
      generally not a crime scene aspect, it's a lot of background work; talking
      to folks and things of that nature.

      Commonwealth: So if I'm hearing what you're saying, you investigate
      the circumstances both before and after the act, and based on that, a
      determination of state of mind is made?

      Cochran: That's correct; this is a small component of that overall
      determination.

      Commonwealth: And what you've determined here, as it goes to state of
      mind, is whoever was firing this weapon, knew what they were doing,
      because they fired a concentrated set of bullets, didn't they?    ·

      Cochran: I would say it's in a very controlled manner.

C. Dr. Fi:itz

      Dr. Fritz treated Appellant's wounds at the hospital. Fritz described

Appellant as "combative and in extremis," behavior he considered consistent

with someone who had suffered a significant wound to the chest. The

Commonwealth then asked Fritz if Appellant had shown "any remorse or any

type of emotion whatsoever in regard" to having just killed two people. Fritz
                                         6
responded, "We were not discussing that situation." He said Appellant made

no mention of the circumstances surrounding his injury.

      The Commonwealth again asked if Appellant was "in any way remorseful

or emotional." Fritz responded that Appellant was "emotional consistent with

someone shot in the chest, he was appropriately upset."

D. Ken Ball

      Ball is a paramedic who treated Appellant at the scene of the shootings.

Over Appellant's objection, Ball was permitted to testify concerning Appellant's

vital signs immediately after the shooting. After Ball read off the medical

information, the prosecutor stated that the readings did not seem abnormal,

and in regards to the blood pressure reading stated, "In fact, I should have as

good, correct." Ball confirmed the accuracy of that conclusion.

E. Analysis

      Appellant casts the foregoing testimony as testimony of non-expert

witnesses expressing, in violation of KRE 701, opinions that Appellant was not

acting under EED at the time of the shootings. He concedes that this issue is

not preserved for appellate review. "Under RCr 10.26, we may grant relief for

an unpreserved error when the error is: (1) palpable; (2) affects the substantial

rights of a party; and (3) has caused a manifest injustice." Spears v.

Commonwealth, 448 S.W.3d 781, 791 (Ky. 2014) (citing Commonwealth v.

Jones, 283 S.W.3d 665, 668 (Ky. 2009)).

      For an error to be palpable, "it must be easily perceptible, plain, obvious

and readily noticeable." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.

                                        7
2006). "Implicit in the concept of palpable error correction is that the error is so

obvious that the trial court was remiss in failing to act upon it sua sponte."

Lamb v. Commonwealth, 510 S.W.3d 316,325 (Ky. 2017).

      "'Manifest' injustice requires showing a probability of a different result or

error. so fundamental as to threaten a defendant's entitlement to due process of

law, i.e., the error so seriously affected the fairness, integrity, or public

reputation of the proceeding as to be "shocking or jurisprudentially

intolerable." Spears, 448 S.W.3d at 791 (citing Martin v. Commonwealth, 207

S.W.3d 1, 3-4 (Ky. 2006)).

      KRE 701 states:

      If the witness is not testifying as an expert, the witness' testimony
      in the form of opinions or inferences is limited to those opinions or
      inferences which are:

             (a) Rationally based on the perception of the witness;
             (b) Helpful to a clear understanding of the witness' testimony
             or the determination of a fact in issue; and
             (c) Not based on scientific, technical, or other specialized
             knowledge within the scope of Rule 702.


      Our review of the testimony cited by Appellant as improper opinion

evidence exposes the inaccuracy of Appellant's initial premise that the

Commonwealth "repeatedly elicited inadmissible opinion testimony and legal

conclusions that Shaun was not acting under EED" at the time of the shooting.

Fritz and Ball provided no testimony at all that could reasonably be construed

as an opinion or conclusion concerning whether Appellant was acting under.

EED at the time of the shooting.


                                          8
      With regard to the cited testimony of Stigers and Cochran, we first note

that it was Appellant, during cross-examination, who broached the subject

concerning the issue of Appellant's state of mind (presumably in the

advancement of his EED defense), and so the cited re-direct testimony is in

large part a product of Appellant having previously "opened the door" to the

issue by raising it himself on cross-examination.

      Professor Lawson describes the concept of "curative admission" or

"opening the door" as follows:

      'The term "opening the door" describes what happens when one
      party introduces evidenc~ and another introduces counterproof to
      refute or contradict the initial evidence ·.... If the first party objects
      to the counterproof, or loses the case and claims error in admitting
      it, typically the objection or claim of error is rejected because he
      opened the door.'

Lawson, Kentucky Evidence§ 1.10[5], at 43 (quoting Mueller & Kirkpatrick,

Federal Evidence§ 12 (2d ed. 1994)) (ellipsis in original). With Appellant

himself having first questioned Stigers and Cochran about Appellant's

emotional state-of-mind, the.Commonwealth's limited follow-up on redirect

falls well within the rule that if one party opens the door to an issue, the

opposing party is entitled to follow-up, clarify, and rebut the evidence as raised

by his opponent.

      Stigers' testimony concerned Appellant's outward, observable demeanor,

which is proper testimony. KRE 602 permits a witness to describe another

person's "conduct, demeanor, and statements [ ] based upon his or her

observations to the extent that the testimony is not otherwise excluded by ,the

Rules of Evidence." Ordway v. Commonwealth, 391 S.W.3d 762, 777 (Ky.
                                          9
2013). Similarly; on cross-examination, Cochran specifically disclaimed any

ability to testify about Appellant's state of mind. He confined his opinion

testimony to the gunshot trajectories. Cochran's only testimony regarding a

shooter's mental state was directed toward the manner in which such a

sequence of shots might be fired. He gave no opinion concerning the

motivation or mental state of the shooter or whether Appellant was acting

under EED on this particular occasion.

      In summary, we find no error at all within the cited testimony, and so we

are unpersuaded that a manifest injustice occurred as a result of the testimony

to which Appellant has directed us. RCr 10.26.


          III. TESTIMONY CONCERNING APPELLANT'S DEMEANOR PRIOR
                              TO THE SHOOTING

      Appellant contends that palpable error occurred when witness Mark

Miller testified that when he saw Appellant earl1er on the·day of the fatal

incident. Appellant was visibly upset and was cursing repeatedly. Appellant

also complains that Miller testified that his granddaughter received baby-

sitting care at a residence also frequented by Nicole and Whiteker. Miller

explained that he had feared for his granddaughter's well-being because "if he

[Appellant] goes down to that house, it won't be good." Miller testified that he

was so worried about what Appellant might do that he could not sleep that

night, and that he ended up at the hospital "because of the stress of the whole

situation."




                                        10
      Because EED was Appellant's defense against the murder charges,

testimony about his emotional condition in the hours leading up to the killings

was decidedly relevant, and probative of a crucial issue in the trial-the

emotions that may have motivated Appellant's later behavior. Miller's

description of Appellant's demeanor was admissible.

         However, Miller's testimony about his concern for his granddaughter's

safety and his contemporaneous speculations about what might happen if

Appellant went to the residence while Nicole was there, and his subsequent

resort to medical assistance because of the stress was all inadmissible as

irrelevant, and it should not have been presented. Appellant never objected to

the testimony so we are again constrained to palpable error review under RCr

10.26.

      As noted above, in order to be entitled to relief under the palpable error

standard, a defendant must show that absent the error that there is a

reasonable probability that a different result would have occurred, or that the

error was so fundamental as to threaten a defendant's entitlement to due

process of law, i.e., that the error so seriously affected the fairness, integrity, or

public reputation of the proceeding so as to be "shocking or jurisprudentially

intolerable." Spears, 448 S.W.3d at 791.

      We are not persuaded that Miller's irrelevant testimony was so

consequential that it affected the verdicts; or that its admission was error so

fundamental as to threaten Appellant's entitlement to due process of law, or

undermine the fairness, integrity, or public reputation of the proceeding as to

                                         11
be "shocking or jurisprudentially intolerable." Accordingly, we reject

Appellant's claim that reversal is required.


                      IV. IMPROPER CLOSING ARGUMENT
      Appellant contends that the prosecutor engaged in two instances of

improper closing arguments. First, he contends that the prosecutor misstated

the law applicable to EED. Second, he contends that the prosecutor argued

facts not in evidence. Appellant concedes that this argument is not preserved

but requests palpable error review under RCr 10.26.

A. Misstating the Law of EED

      In McClellan v. Commonwealth, we_ defined extreme emotional

disturbance as:

      a temporary state of mind so enraged, inflamed, or disturbed as to
      overcome one's judgment, and to cause one to act uncontrollably
      from the impelling force of the extreme emotional disturbance
      rather than from evil or malicious purposes. It is not a mental
      disease in itself, and an enraged, inflamed, or disturbed emotional
      state does not constitute an extreme emotional disturbance unless
      there is a reasonable explanation or excuse therefor, the
      reasonableness of which is to be determined from the viewpoint of
      a person in the defendant's situation under circumstances as
      defendant believed them to be.

715 S.W.2d 464, 468-69 (Ky. 1986) (emphasis added). This definition is

incorporated into KRS 507.020(1)(a):

       a person shall not be guilty [of murder] if he acted under the influence of
       extreme emotional disturbance for which there was a reasonable
       explanation or excuse, the reasonableness of which is to be determined
       from the viewpoint of a person in the defendant's situation under the
       circumstances as the defendant believed them to be.




                                        12
      Appellant argued at trial that the circumstances surrounding the

collapse of his marriage provided the reasonable explanation for his violent

outburst. While addressing Appellant's EED defense during closing

arguments, the prosecutor told the jury that EED did not apply in this case

unless there was "some reasonable explanation" for the disturbance, and that

by urging the jury to find that he acted under EED, Appellant was asking them

"to say going through a divorce [is] somehow explainable as EED." Appellant

contends that these remarks to the jury "distorted the law." We disagree.

      The prosecutor's statement that Appellant's claim of EED could not

stand unless accompanied by a "reasonable explanation" is fundamentally

consistent with McClellan and KRS 507.020(1)(a). To qualify as EED, the

temporary loss of judgment that mitigates a murder charge must have a

reasonable explanation that accounts for the temporary loss of sound judgment

by a person in the·defendant's situation. Moreover, we do not regard the

prosecutor's argument as an attempt to explain the law to the jury. Rather, we

see it as simply a response to Appellant's contrary assertion, an attempt to

persuade the jury that the rather common stress of going through a divorce,

even under the difficult circumstances faced by Appellant, would not

reasonably explain Appellant's loss of judgment, causing him to "act

uncontrollably from the impelling force of the extreme emotional disturbance

rather than from evil or malicious purposes."




                                       13
      In summary, Appellant overstates the significance of the prosecutor's

remarks. The prosecutor's comment did not distort the law applicable to EED.

We see no error here.

B. Arguing of Facts not in Evidence
      Appellant also contends that the prosecutor's closing argument urged the

jury to consider facts not in evidence. Although an attempt to commit suicide

may be the most plausible explanation for the fact that Appellant shot himself

in the chest and the abdomen, the prosecutor.challenged that hypothesis with

the suggestion that Appellant may have intended only to wound himself. The

prosecutor argued to the jury, "I do know one thing, if I had that

marksmanship ability that he did and I wanted to kill myself, I would've done

it, that gun barrel would have gone in my mouth or up against my heart."

      Appellant contends that no evidence at trial supported the prosecutor's

charge that Appellant was a skilled marksman, and thus the prosecutor

improperly interjected that fact. "[Attorneys] may draw reasonable inferences

from the evidence and propound their explanations of the evidence and why

the evidence supports their respective theories of the case. However, they may

not argue facts that are not·in evidence or reasonably inferable from the

evidence." Garrett v. Commonwealth, 48 S.W.3d 6, 16 (Ky. 2001)(citations

omitted).

      We disagree with Appellant's contention. Evidence indicated that he had

a concealed carry license which requires a basic level of competence with

firearms. The proficiency of his marksmanship was evidenced by the fact that


                                       14
he targeted both Nicole and Whiteker and he hit both of them. The prosecutor

did not attribute to Appellant a greater level of marksmanship than that which

could be reasonably inferred from the evidence. We find no error in that aspect

of the prosecutor's closing argument.


             V. PENALTY PHASE ARGUMENTS AND INSTRUCTIONS

      Appellant next contends that the penalty phase jury instructions were

configured so as to compel the jurors to impose either life without parole or life

without parole for 25 years if it found the existence of an aggravating factor,

thereby preventing the jury from imposing the lesser alternatives of either: 1) a

term of imprisonment for life; or 2) imprisonment for a term of not less than 20

nor more than 50 years. The jury found the existence of the aggravating factor,

that Appellant's acts were intentional and resulted in multiple deaths, and

fixed his sentence for each death at life without the possibility of parole.

Appellant concedes that this issue is not preserved but requests palpable error

review pursuant to RCr 10.26.

A. The Instructions

      The penalty phase instructions for both the Nicole and Whiteker murders

contain the same alleged defect. In order to illustrate the alleged error we use

the penalty phase instructions applicable to Whiteker. Instruction No. 5 sets

forth the authorized ·sentences for capital murder and clearly indicated the full

range of possible sentences:

                               INSTRUCTION NO. 5

                                     MURDER

                                         15
You may fix the Defendant's punishment for the Murder of Larry Whiteker at:

      (1) Confinement in the penitentiary for not less than twenty (20) years
      nor more than fifty (50) years;
      OR;
      (2) Confinement in the penitentiary for life;
      OR,
      (3) Confinement in the penitentiary for life without benefit of probation
      or parole until he has served a minimum of twenty-five (25) years of his
      sentence;
      OR,
      (4) Confinement in the penitentiary for life without benefit of probation
      or parole.

      But you cannot fix his sentence at confinement in the penitentiary for life

without benefit of probation or parole, or at confinement in the penitentiary for

life without benefit of probation or parole until he has served a minimum of

twenty-five (25) years of his sentence, unless you are satisfied from the

evidence beyond a reasonable doubt that the statemer:it listed in Instruction

No. 3 (Aggravating Circumstance) is true in its entirety, in which event you

must state in writing, signed by the foreman, that you find the aggravating

circumstance to be true beyond a reasonable doubt.

You shall use Verdict Form "2" in reaching your verdict under this Instruction.

Continue to Instruction 6.

      The latter portion of Verdict Form No. 2 contains the alleged error:




                                       16
                             VERDICT FORM NO. "2"
                                   MURDER
                                      NO.I
      We, the jury, fix the Defendant Shaun E. Hiles' punishment for the
offense of Murder of Larry Whiteker at:

      Confinement in the penitentiary for not less than twenty (20) years nor
      more than fifty (50) years
                                     _ _ _ _ _ _ _ _ _ _ _ _ _ _ years·

                                       Foreperson

                                    NO. 2
     We, the jury, fix the Defendant Shaun E. Hiles' punishment for the
Murder of Larry Whiteker at confinement in the penitentiary for life.


                                               Foreperson

                                     NO. 3
      We, the jury, find beyond a reasonable doubt that the aggravating
circumstance described in Instruction No. 3, "The offense of Murder was
committed, and Defendant's act or acts of killing were intentional and resulted
in multiple deaths" (CLEARLY CIRCLE ONE OF THE FOLLOWING):

                                   HAS [Circled]
                                   HAS NOT
been proven from the evidence beyond a reasonable doubt.

     We, the jury, fix the Defendant Shaun E. Hiles's punishment for the
Murder of Larry Whiteker at: (CLEARLY CIRCLE A. or B.)

      A. Confinement in the penitentiary for life without benefit of probation or
      parole until he has served a minimum of twenty-five (25) years of his
      sentence;

      OR,

      B. Confinement in the penitentiary for life without benefit of probation or
      parole. [B. was circled by the Jury]
                                       17
                                             Foreperson

B. The Prosecutor's Erroneous Statement

      Appellant further contends that the error was compounded based upon

the Commonwealth's misleading statement during its closing argument

concerning the ramifications of a finding of an aggravating factor:

      In other words, the defendant committed the acts intentionally and
      did it result in multiple deaths? If you start there and you apply
      the law that you swore you would apply, then you've got but two
      options out of the four, and that is, as shown on down the page, A
      or B, either life without the benefit ofprobation or parole or life
      without parole, period.


C. Analysis

      We begin by noting that the prosecutor's statement that if the jury found

an aggravating factor "then you've got but two options out of the four, and that

is, as shown on down the page, A or B, either life without the benefit of

probation or parole or life without parole, period" is an egregious misstatement

of the relevant sentencing law and indeed is utterly contradicted by Instruction

No. 5 as set forth above. In fact, contrary to the prosecutor's statement, if a

capital case jury finds an aggravating circumstance, it need not impose a

sentence authorized only in the event of the finding of an aggravator; rather,

even in that instance it may still impose a sentence authorized in the absence

of the finding of an aggravator. See Dunlap v. Commonwealth, 435 S.W.3d 537,

610 (Ky. 2013). The prosecutor's statement was thus erroneous.



                                        18
         With regard to the configuration of the jury instructions, Verdict Form 2

first gives the jury an opportunity to impose a non-capital sentence of a term of

years or life. Only if it refrains from doing that does it then move to

ascertaining the presence of an aggravating factor, and at this point, the

instructions are indeed flawed. As guided by the instructions, if the jury

determines the existence of an aggravating factor, it then has only the option of

two capital case sentencing ranges: life without parole or life without parole for

twenty-five years (the Commonwealth did not seek the death penalty in this

case).

         If the instructions are faithfully followed, the jury that finds the existence

of an aggravating factor, such as multiple deaths, is limited to two sentencing

options: life without parole or life without parole for twenty-five years. That is

an incorrect presentation of the applicable sentencing options. · Under the

statutory scheme for capital offense sentencing, even after finding a capital

offense sentencing aggravator, the jury may still recommend a sentence of

imprisonment for a term of years (not less than twenty nor more than fifty), or

imprisonment for life. Dunlap at 610. The instructions should have presented

the jury with the additional options of fixing a sentence of imprisonment for a

term of years or for life, even if the jury found the presence of an aggravating

factor.

         We agree with Appellant that the jury instructions and the prosecutor's

statement are both erroneous. Erroneous jury instructions are presumed

prejudicial. Harp v. Commonwealth, 266 S.W.Bd 813, 818 (Ky. 2008). "Of

                                           19
course, that presumption can be successfully rebutted by showing that the

error 'did not affect the verdict or judgment.m Id. Clearly, the prosecutor

compounded the problem by emphasizing the erroneous instruction in his

closing argument.

      Nevertheless, under the applicable standard for unpreserved claims _of

error, we are not persuaded that manifest injustice occurred, given the facts of

this case. Most compelling is the fact that after the jury found the aggravating

factor, it by-passed the lower sentencing option-life without parole for twenty-

five years-and instead selected the higher sentence of life without the

possibility of parole, the greatest sentence possible in this case. From this

unique circumstance, logic dictates that if the jury were otherwise inclined

toward the lesser sentences of imprisonment for life of a term of years, then it

would have chosen the lesser of the two sentencing options before it: life

without parole for twenty,five years. Having rejected that lesser option, we see

no realistic prospect that the jury might have chosen an even lesser alternative

of either imprisonment for life or a term of years which should have been before

it.

      We are also influenced by other aspects of the jury instructions which

informed the jurors that their full range of sentencing options included life

imprisonment and imprisonment for a term of years. Jury Instruction 5

specifically informed the jury that these sentencing options were authorized

sentences. Further, a different aspect of the way Verdict Form 2 was

structured arguably favored Appellant in that the jury was first invited to

                                       20
recommend a term of years or life, and only then was directed to move to the

aggravating factor section with its capital sentencing options. In other words, if

the jury had been inclined to recommend a sentence of fifty years (or some

other term of years), it could have done that in the first section of Jury Form 2

and in that event, it would never have reached the erroneous capital

sentencing section further down the page .

     .While we agree that the jury instructions contained flaws and that the

prosecutor misstated the jury's sentencing options upon the finding of

aggravating circumstances, these.errors were never brought to the attention of

the trial court. We are convinced that these unpreserved errors did not affect

the ultimate sentencing decision made by the jury, and we are convinced that

these unpreserved errors were not so fundamental so as to deprive Appellant of

his right to due process of law. The errors did not fundamentally affect the

fairness, integrity, or public reputation of the proceeding as to be "shocking or

jurisprudentially intolerable." Spears, supra. Accordingly, we are satisfied that

the errors did not cause manifest injustice so as to require reversal of the

judgment under RCr 10.26.


       VI. APPELLANT WAS NOT ENTITLED TO A DIRECTED VERDICT
               ON THE WANTON ENDANGERMENT CHARGES

      Appellant's convictions for wanton endangerment are predicated upon

the allegations that he intentionally crashed his SUV into Whiteker's truck,

thus wantonly endangering the occupants of that vehicle, Nicole and Whiteker.

Appellant argues that he was entitled to a directed verdict on the two wanton

                                       21
endangerment charges. He concedes that the issue is not preserved for

appellate review but requests review nonetheless under the palpable error

standard.

      KRS 508.060(1) provides that:

      A person is guilty of wanton endangerment in the first degree
      when, under circumstances manifesting extreme indifference to the
      value of human life, he wantonly engages in conduct which creates
      a substantial danger of death or serious physical injury to another
      person.

KRS 501.020(3) defines wantonly as follows:

      "Wantonly" -- A person acts wantonly with respect to a result or to
      a circumstance described by a statute defining an offense when he
      is aware of and consciously disregards a substantial and
      unjustifiable risk that the result will occur or that the
      circumstance exists. The risk must be of such nature and degree
      that disregard thereof constitutes a gross deviation from the
      standard of conduct that a reasonable person would observe in the
      situation. A person who creates such a risk but is unaware thereof
      solely by reason of voluntary intoxication also acts wantonly with
      respect thereto.

      To prove these charges, the Commonwealth presented the testimony of
                   .
an automobile collision reconstructionist who opined that when Appellant's

SUV crashed into Whiteker's truck, both vehicles were traveling on a narrow

country roadway at a speed of more than seventy miles per hour. The expert

deduced that when Whiteker braked to turn right onto a second narrow road,

Appellant caught up and rammed into the right rear side of the Whiteker

vehicle, spinning it to a stop. In his brief, Appellant frames his argument as

follows:

      [t]here was no evidence that Shaun was acting wantonly when he
      hit Whiteker's pickup truck. To the contrary, the Commonwealth
      called accident reconstructionist Scott Conrad to testify that
                                       22
      Shaun's collision with Whiteker appeared to be the result of an
      intentional hit.

(Emphasis in original). As we construe the argument, Appellant contends that

he could not be convicted of wanton endangerment because, as the

Commonwealth's evidence establishes, he was acting intentionally rather than

wantonly, when he crashed his SUV into Whiteker's occupied pickup.

      We find no basis to support the proposition suggested by Appellant. The

definition of wanton conduct explicitly embodies the notion that the defendant

"is aware of and consciously disregards a substantial and unjustifiable risk"

entailed by his dangerous behavior, but then proceeds to engage in the conduct

despite that risk. The quintessential example of wanton conduct is

intentionally firing a gun into a crowd or intentionally throwing a bomb into an

occupied building.

      Upon viewing the evidence in the light most favorable to the

Commonwealth, a reasonable jury could easily conclude that Appellant

intentionally crashed into Whiteker's truck and that he was at that time aware

of substantial risk created by his conduct and yet he consciously disregarded

those risks and proceeded nonetheless. Appellant was·not entitled to a directed

verdict on the wanton endangerment charges regardless of his failure to

preserve the issue. It follows that Appellant is not entitled to relief under the

manifest injustice standard of RCr 10.26

           VII. THE WANTON ENDANGERMENT CONVICTIONS ARE
                     NOT BARRED BY DOUBLE JEOPARDY


                                        23
      Finally, Appellant contends his convictions for murdering Nicole and

Whiteker and for wantonly endangering them vio_late the statutory double

jeopardy provisions of KRS 505.020(1). Specifically, he argues that "the act of

slamming into Whiteker's truck and shooting the occupants was one event,

uninterrupted by legal process and cannot be prosecuted as two separate

crimes[.]"

      KRS 505.020(1) provides as follows:

      (1) When a single course of conduct of a defendant may establish the
      commission of more thari one (1) offense, he may be prosecuted for each
      such offense. He may not, however, be convicted of more than one (1)
      offense when:

             (a) One offense is included in the other, as defined in subsection
             (2); or

             (b) Inconsistent findings of fact are required to establish the
             commission of the offenses; or

             (c) The offense is designed to prohibit a continuing course of
             conduct and the defendant's course of conduct was uninterrupted
             by legal process, unless the law expressly provides that specific
             periods of such conduct constitute separate offenses.

      Appellant does not elaborate upon his parsing of why KRS 505.020(1)

would preclude convictions for both wanton endangerment and murder under

the facts of this case; however, it is clear that the plain language of the statute

permits prosecutions for both wanton endangerment and murder under the

circumstances presented here.

      The statute begins by accentuating this general rule: When a single

course of conduct of a defendant may establish the commission of more than

one (1) offense, he may be prosecuted for each such offense. Assumirig,

                                        24
therefore, that Appellant's conduct of crashing his vehicle into Whiteker's truck

and then shooting the occupants is but a single course of conduct, if two

offenses may be established by the conduct, then he may be prosecuted for

both. Plainly, the ramming of the occupied truck establishes the two offenses

of wanton endangerment and the separate act of shooting the occupants

during the same course of conduct establishes the two offenses of murder .

    . The remainder of KRS 505.020(1) proceeds to establish exceptions to the

general rule. A defendant may not be convicted for two (or more) crimes for the

same course of conduct if (a) one of the crimes is a lesser included offense of

the other; (b) inconsistent facts would have to be reached to convict the

defendant of both of the crimes; or (c) the offense is designed to prohibit a

continuing course of conduct and the defendant's course of conduct was

uninterrupted by legal process, unless the law expressly provides that specific

periods of such conduct constitute separate offenses.

      Subsection (a) does not apply because the wanton endangerment charges

are not, under these circumstances, a lesser included offense of the murder

charges; indeed the wanton endangerment charges resulted from Appellant's

crashing his vehicle into Whiteker's vehicle whereas the murder charges

involved the entirely separate event of his shooting of the victims. As we

explained in Spicer v. Commonwealth, KRS 505.020(1) "does not bar the

prosecution or conviction upon multiple offenses arising out of a single course

of conduct when the facts establish that two or more separate and distinct

attacks occurred during the episode of criminal behavior. [F]or multiple

                                        25
convictions to be proper, there must have been a cognizable lapse in his course

of conduct during which the defendant could have reflected upon his conduct,

if only momentarily, and formed the intent to commit additional ·acts." 442

S.W.3d 26, 31 (Ky. 2014) (citing Kiper v. Commonwealth, 333 S.w.3d 736, 745

(Ky. 2012)).

      Subsection (b) similarly does not apply because the jury need not have

reached inconsistent facts in order to have convicted Appellant under each of

the sets of charges. Finally, Subsection (c) does not apply because it applies

only to offenses "designed to prohibit a continuing course of conduct[.]"

Unlike, for example, the crime of the offense of nonsupport of a dependent,

neither the crimes of murder nor wanton endangerment were designed by the

legislature to prohibit a continuing course of conduct. Accordingly, this

subsection is inapplicable. Welborn v. Commonwealth, 157 S.W.3d 608, 612

(Ky. 2005)

      In summary, Appellant's convictions for the multiple crimes of murder

and wanton endangerment are not barred by KRS 505.020(1).


                                 VIII. CONCLUSION
      For the foregoing reasons, the judgment of the Grant Circuit Court is

affirmed.

      All sitting. All concur.




                                       26
     COUNSEL FOR APPELLANT:

     Erin Hoffman Yang
     Assistant Public Advocate

     COUNSEL FOR APPELLEE:

     Andy Beshear
     Attorney General of Kentucky
     David Bryan Abner
     Assistant Attorney General




                                    27


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