         IMPORTANT NOTICE
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                                                  MODIFIED: FEBRUARY 18, 2016
                                                  RENDERED: OCTOBER 29, 2015
                                                                E B HED

                   $uprtint Conti of
                                2014-SC-000224-MR

                                                     DAT LE             - 1G. ei...k-C.,,-0,3:44:pec
                                                                        APPELLANT
 ROBERT THORNTON


                ON APPEAL FROM JEFFERSON CIRCUIT COURT
 V.           HONORABLE CHARLES LOUIS CUNNINGHAM, JUDGE
                            NO. 08-CR-003866


 COMMONWEALTH OF KENTUCKY                                                APPELLEE



                    MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING

       A Jefferson Circuit Court jury found Appellant, Robert Thornton, guilty of

 seven counts of first-degree robbery. The jury recommended Appellant be

sentenced to a total of twenty-four years' imprisonment, and the trial court

sentenced him accordingly. Appellant now appeals as a matter of right, Ky.

Const. § 110(2)(b), arguing the trial court erred in: (1) finding that Appellant

lacked standing to challenge the warrantless global positioning system (GPS)

tracking of a vehicle he drove, (2) denying Appellant's motion for a directed

verdict as to some of his charges, and (3) only partially granting Appellant's

motion to sever.


                                I. BACKGROUND
      Appellant was charged with forty-seven counts of first-degree robbery,

one count of violating a protective order, one count of fleeing or evading police,
 and one count of being a second-degree persistent felony offender (PFO). The
 Commonwealth ultimately dropped one of the robbery charges and the charge
 for violating a protective order; and, the trial court partially granted Appellant's
 motion to sever (such that he could only be tried jointly for offenses occurring
 within the same one-year period). As a result, Appellant was only tried for
 twelve of the first-degree robbery charges and for being a second-degree PFO.
 The jury convicted him of seven of the twelve robbery charges and acquitted
 him of the remaining five and of the PFO charge.
       The events giving rise to Appellant's charges center around his alleged
 involvement in a series of robberies dating back to 2001 (though only tried for
 those occurring in 2008). Many of these robberies were captured on
 surveillance film and showed either one or two suspects entering places of
business (restaurants in all but one instance), typically dressed in dark, baggy
clothes and brandishing firearms. Several years into their investigation,
Louisville Metro Police began to consider Kevin Sneed as a suspect. Without
first obtaining a warrant, police placed GPS tracking devices on Sneed's
vehicle, along with the vehicle belonging to his girlfriend, Kimberly Starks.
After tracking the GPS signal emanating from the tracker attached to Sneed's
vehicle to Appellant's apartment, police also considered Appellant.as a suspect
in the robberies.

      Eventually, police used the GPS signal to catch Appellant and Sneed
"red-handed" at the final robbery, leading to two high-speed police chases,
Appellant being taken into custody, Sneed crashing a police car into the Ohio

                                         2
 River, and, ultimately Sneed being fatally shot by police after refusing to drop
 his weapon and put his hands up. More facts will be developed below as
 necessary for our analysis.

                                    IL ANALYSIS
    A. Fourth Amendment
        The Fourth Amendment to the United States Constitution protects
 individuals against unreasonable searches and seizures; it reads: "Mlle right of
 the people to be secure in their persons, houses, papers, and effects, against
 unreasonable searches and seizures, shall not be violated . . . ." Section 10 of
 the Kentucky Constitution provides similar guarantees: "[t]he people shall be
 secure in their persons, houses, papers and possessions, from unreasonable
 search and seizure . . . ." We have held "Section 10 of the Kentucky
 Constitution provides no greater protection than does the federal Fourth
Amendment." LaFollette v. Commonwealth, 915 S.W.2d 747, 748 (Ky.1996),
 abrogated on.other grounds by Kyllo v. United States,   533 U.S. 27 (2001).
       Appellant first argues that the trial court erred in finding that he did not
have standing to challenge the warrantless GPS tracking of a vehicle he had
permission to drive. In fact, however, the trial court merely found that
Appellant did not have "standing to seek the shelter provided by [United States
v. Jones,   132 S. Ct. 945 (2012)] and he did not have the type of possessory
interest that protects against trespass," and went on to find that Appellant had
no legitimate expectation of privacy—not that he lacked standing altogether.
We will, therefore, address this matter as if Appellant were arguing that the

                                          3
 trial court erred in its denial of Appellant's motion to suppress, rather than as

 a question of standing. Furthermore, as the United States Supreme Court has

 held: in determining whether a defendant is able to show the violation of his

 (and not someone else's) Fourth Amendment rights, the `definition of those

 rights is more properly placed within the purview of substantive Fourth     .




 Amendment law than within that of standing."' Minnesota v. Carter, 525 U.S.

 83, 88, (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 140 (1978)).

       Appellant insists that United States v. Jones, 132 S. Ct. 945 (2012)

 requires this Court to resolve the Fourth Amendment issue in his favor. We

 turn first to the facts of that case. In Jones, the police attached a GPS tracking

 device, id. at 947, to the undercarriage of a vehicle registered to Jones's wife,

 but driven exclusively by Jones. Id. at 949, n. 2. Justice Scalia, writing for the

 majority of the United States Supreme Court, framed the issue as: "whether

 the attachment of a Global-Positioning-System (GPS) tracking device to an

individual's vehicle, and subsequent use of that device to monitor the vehicle's

movements on public streets, constitutes a search or seizure within the

meaning of the Fourth Amendment." Id. at 947. The Court made it clear that

an important element of Jones's case was the fact that "[t]he Government

physically occupied private property for the purpose of obtaining information."

Id. at 949. In that case, the United States Court of Appeals for the District of

Columbia had held that, since Jones was the vehicle's exclusive driver, the fact

that it was registered to his wife had no effect on his Fourth Amendment claim.

The government did not challenge that determination. Therefore, Jones's

                                         4
  status as the driver or owner of the vehicle was not before the United States

  Supreme Court. Id. at n. 2.

           The Jones majority held that the "reasonable expectation of privacy" test

 set forth in Katz v. United States, 389 U.S. 347, 360 (1967) did not apply to

 Jones's case, as "Jones's Fourth Amendment rights do not rise or fall with the

 Katz formulation." Jones, 132 S. Ct. at 950. However, the majority went on to

 point out that: "[s]ituations involving merely the transmission of electronic

 signals without trespass would remain subject to Katz analysis." Id. at 953.

 Justice Scalia further articulated: lilt may be that achieving the same result

 through electronic means, without an accompanying trespass, is an

 unconstitutional invasion of privacy, but the present case does not require us

 to answer that question." Id. at 954. In summary, the Jones Court was faced

 with a case in which there was both trespass in order to attach the tracking

 system and subsequent transmission of electronic signals associated with the

 device.

       A year after issuing its decision in Jones, the United States Supreme

Court cited that case in Florida v. Jardines, 133 S. Ct. 1409, 1417 (2013) for

the proposition that it need not analyze the case before it under Katz. In

Jardines, police used a narcotics dog to investigate the constitutionally-

protected area around Jardines' home. The government argued that no

legitimate privacy interest was implicated as there was no reasonable

expectation of privacy in the area the narcotics dog "sniffed." However, the

United States Supreme Court disagreed with the application of the Katz

                                          5
  standard, as suggested by the government, and stated: "[t]he Katz reasonable-

 expectations test 'has been added to, not substituted for,' the traditional

 property-based understanding of the Fourth Amendment, and so is

 unnecessary to consider when the government gains evidence by physically

 intruding on constitutionally protected areas." Jardines, 133 S. Ct. at 1417

 (quoting Jones, 132 S.Ct. at 951-952). The Court elaborated: "[o]ne virtue of

 the Fourth Amendment's property-rights baseline is that it keeps easy cases

- easy. That the officers learned what they -learned only by physically intruding

 on Jardines' property to gather evidence is enough to establish that a search

 occurred." The fact that the officers had physically trespassed upon the

 defendant's property was central to the Jardines holding.

       This Court has also had occasion to examine the Jones holding. In

 Hedgepath v. Commonwealth, 441 S.W.3d 119, 125 (Ky. 2014), we recently

pointed out that the holding in Jones was reached "under a trespass theory."

In that case, police had the appellant's cell phone carrier ping his phone in

order to determine its location. Since there was no physical trespass in

Hedgepath, we indicated that, "[a]s to Is]ituations involving merely the

transmission of electronic signals without trespass,' the [United States]

Supreme Court noted that they 'would remain subject to Katz analysis.'" Id.

While we did not ultimately analyze this issue under Katz, as we held that the

fruit-of-the-poisonous-tree doctrine was inapplicable, rendering any further

analysis unnecessary, we still find our recent words instructive.




                                        6
        With this body of case law in mind, we must first determine whether a
 trespass occurred against Appellant in order to decide whether Jones is
 determinative of Appellant's issue. In the present case, Appellant neither
 owned the car in question nor was he the exclusive driver of the vehicle. The
 vehicles to which police attached the GPS tracking devices belonged to

 Appellant's alleged co-conspirator, Sneed, and Sneed's girlfriend, Starks.
 Appellant does not claim that the vehicles were under his control when police—
 admittedly acting without a warrant—attached the GPS tracking devices to
 them. Appellant did testify at trial that he had permission from the owners to
 drive the vehicles and that he did so periodically (sometimes alone when trying
 to throw Sneed's wife off his trail, as he was having an affair, and other times
 with Sneed in the vehicles with him) beginning months before the placement of
 the tracking devices. While claiming that Jones should apply, Appellant frames
 his arguement in terms of the Katz reasonable-expectation-of-privacy test. He
never argues that a trespass occurred against him when police attached the
GPS trackers to the vehicles. In Jones, a lower court had determined that the
vehicle's registration did not affect Jones's ability to make a Fourth

Amendment objection, and the government did not appeal that determination.
Jones was the exclusive driver of the vehicle in question. Those are not the
facts of this case.

      Appellant does not claim that the vehicles were in his possession when
police "physically occupied private property for the purpose of obtaining
information." Jones, 132 S. Ct. at 949. By the very language of the Fourth

                                        7
 Amendment, "[t]he right of the people to be secure in their persons, houses,

 papers, and effects, against unreasonable searches and seizures, shall not be

 violated." (Emphasis added.) In order for Appellant's Fourth Amendment

rights to have been violated by a police trespass, the "effects"—Sneed's and

Starks's vehicles—would have to, at the very least, have been rightfully

possessed by Appellant at the time of the GPS placement. Appellant does not

make this claim. Thus, the police could not have been trespassing on

Appellant's "effects" when they placed the GPS trackers on the vehicles. This

highlights the problem with Appellant's argument. Jones only applies where

there has been a trespass perpetrated against the individual claiming a Fourth

Amendment violation in conjunction with "an attempt to find something or to

obtain information," id. at 951, n. 5, and Appellant claims no such trespass.

Because there was no trespass against Appellant, we disagree with his
                       ,




contention that Jones governs the case at bar. While it appears there was a

trespass by police, it was not a trespass against Appellant and does not impact

our analysis of this issue as to his Fourth Amendment rights.

      Our analysis does not end with our determination that the police did not

trespass against Appellant Rather, the question still remains whether

Appellant's Fourth Amendment rights were violated when police used the GPS

tracking devices when Appellant was permissively operating the vehicles.

Therefore, we will proceed to address this issue, as directed by the United

States Supreme Court in Jones, under the Katz reasonable-expectation-of-

privacy test. As the United States Supreme Court explained in Rakas v.
 Illinois, "the Court in Katz held that capacity to claim the protection of the

 Fourth Amendment depends not upon a property right in the invaded place but
 upon whether the person who claims the protection of the Amendment has a
 legitimate expectation of privacy in the invaded place." 439 U.S. 128, 143
 (1978) (citing Katz, 389 U.S. at 353; United States v. Chadwick, 433 U.S. 1, 7
 (1977); United States v. White, 401 U.S. 745, 752 (1971)). Therefore, it falls to
 us now to determine whether Appellant had a reasonable expectation of privacy
 in Sneed's and Starks's vehicles while he was permissively operating them that
was violated by the police's monitoring of signals from the GPS tracking
devices.
       After a robbery took place on December 8, 2008, police set up a "geo-
fence" around Sneed's apartment complex and thereby received alerts anytime
Sneed's or Starks's vehicles left the perimeter of the "fence." Detectives testified
that, on December 14, police began live surveillance of the GPS tracking
system attached to one of the cars after it left the perimeter. Police tracked the
GPS signals to Appellant's apartment, and then to Wendy's. Two officers in the
area saw two suspects wearing black approach the restaurant's back door, but
then walk away. Again, on December 21, 2008, police tracked Starks's vehicle
using the GPS signal after it left the perimeter of the geo-fence. In this
instance, it was Appellant driving Starks's car. Appellant drove to Wendy's,
which they allegedly robbed. Starks's car was spotted leaving the scene of the
robbery. Detectives began converging upon the area and attempted to stop
Starks's vehicle. However, Appellant fled, traveling at a high rate of speed and
 running red lights. Eventually, police managed to stop the vehicle and arrested
Appellant. Sneed managed to escape Starks's vehicle while police were
apprehending Appellant and steal a marked Louisville Metro Police Department
cruiser. After another high speed chase, Sneed crashed the car into the Ohio
River, where police ultimately shot and killed him when he refused to put his
hands in the air and drop his weapon.
       Turning to United States Supreme Court precedent, we find United States
v. Knotts, 460 U.S. 276 (1983), instructive. In Knotts, applying the Katz

reasonable-expectation-of-privacy test, the Court held that the defendant's
Fourth Amendment rights were not violated when police used a beeper placed
inside a container of chloroform (with the consent of the seller) to obtain
information about the location of a secluded cabin owned by the defendant (the
purchaser of the chloroform) where they believed he was manufacturing
methamphetamine. Id. Writing for the majority, Justice Rehnquist pointed out
"that the Fourth Amendment's reach 'cannot turn upon the presence or
absence of a physical intrusion into any given enclosure."' Knotts, 460 U.S. at
280 (quoting Katz, 389 U.S. at 353). The Knotts Court relied on an earlier case,

wherein the Supreme Court had elaborated on the Katz principles:
     Consistently with Katz, this Court uniformly has held that the
     application of the Fourth Amendment depends on whether the
     person invoking its protection can claim a "justifiable," a
     "reasonable," or a "legitimate expectation of privacy" that has been
     invaded by government action. . . . This inquiry, as Mr. Justice
     Harlan aptly noted in his Katz concurrence, normally embraces
     two discrete questions. The first is whether the individual, by his
     conduct, has "exhibited an actual (subjective) expectation of
     privacy," 389 U.S., at 361 . . . —whether, in the words of the Katz

                                       10
        majority, the individual has shown that "he seeks to preserve
        [something] as private." Id., at 351 . . . The second question is .
        whether the individual's subjective expectation of privacy is "one
        that society is prepared to recognize as 'reasonable,' " id., at 361, .
        . . .—whether, in the words of the Katz majority, the individual's
        expectation, viewed objectively, is "justifiable" under the
        circumstances. Id., at 353, 88 S.Ct., at 512.
 Smith v. Maryland, 442 U.S. 735, 740-41 (1979) (footnote omitted).

        The Knotts majority also relied on the plurality opinion in Cardwell v.
 Lewis, which stated: "[o]ne has a lesser expectation of privacy in a motor

 vehicle because its function is transportation and it seldom serves as one's
 residence or as the repository of personal effects. A car has little capacity for
 escaping public scrutiny. It travels public thoroughfares where both its
 occupants and its contents are in plain view." 417 U.S. 583, 590, (1974)
 (plurality). The Knotts Court ultimately held that "monitoring the beeper

 signals" did not "invade any legitimate expectation of privacy," Knotts, 460 U.S.
 at 285, as

      [v]isual surveillance from public places along [the route] would
      have sufficed to reveal all of these facts to the police. The fact that
      the officers in this case relied not only on visual surveillance, but
      on the use of the beeper to signal the presence of [the] automobile
      to the police receiver, does not alter the situation. Nothing in the
      Fourth Amendment prohibited the police from augmenting the
      sensory faculties bestowed upon them at birth with such
      enhancement as science and technology afforded them in this
      case.
Id. at 282.

      We acknowledge that there is a difference between Knotts and the case at
bar, in that the original owner gave consent for the placement of the beeper in
Knotts. While the same is not true so far as Appellant is concerned, we believe


                                         11
 it is a distinction without a difference under the facts of this case. The
 ultimate question is still the same: since the police did not trespass against
 Appellant, we are only determining whether the GPS tracking device invaded
 his legitimate expectation of privacy. We hold that the police monitoring the
 GPS signals from Starks's vehicle as Appellant drove it in areas where "[v]isual
 surveillance from public places . . . would have sufficed to reveal" his location
to police did not "invade any legitimate expectation of privacy." Id. Therefore,
Appellant's Fourth Amendment rights were not violated and the trial court did
not err in denying Appellant's suppression motion.
    B. Directed Verdict
       Appellant next argues that the trial court erred by denying his motion for
a directed verdict as to two of his first - degree robbery charges, claiming that
the testimony concerning these robberies did not fit the modus operandi
established by police and was inconsistent with the other robberies.
Specifically, Appellant claims that the trial court should have granted a
directed verdict as to the May 12, 2008, robbery at Buckhead, pointing out that
the testimony presented by the Commonwealth on this charge included
testimony that both robbers involved had black guns (rather than one black
gun and one silver gun as was the case in the other robberies). Further,
Appellant points to witness testimony that the shorter of the two robbers was 6'
or 6'1"--in contrast to Appellant's height of 5'6".
      Appellant also asserts that the trial court should have granted a directed
verdict as to the September 15, 2008, robbery of a Family Dollar store, as this

                                         12
 was the only charge that did not involve a restaurant, thus placing it outside
 the modus operandi developed by police. Appellant points to the fact this was
 the only robbery in which the gun was pointed sideways "in a 'gangster'
manner" and to the testimony that the gloves worn by at least one of the two
 robbers had finger portions cut off. Appellant alleges that these differences
 deviated from the other robberies to such an extent that it was error for the
trial court to deny his motion for a directed verdict, as they were too dissimilar
for the jury to rely on modus operandi in order to find him guilty.
       We note that both of these robberies were caught on surveillance tape
and that tape was admitted at trial. Therefore, the jury was not merely relying
on the testimony of witnesses or on the modus operandi developed by police
and presented by the    Commonwealth. The only issue on these counts       was
identity: was Appellant one of the two robbers? It is important to note that,
while the jury considered twelve counts of first-degree robbery against
Appellant, it only convicted him of the seven in which there were either two
individuals committing the robbery or there was a surveillance video of the
event or both. The jury was able to compare the suspects in the videos in order
to determine if they were the same person using such observations as their
physical size, mannerisms, and clothing.
        A trial court presented with a motion for directed verdict "must draw all
fair and reasonable inferences from the evidence in favor of the
Commonwealth," and "assume that the evidence for the Commonwealth is true,
but reserve[e] to the jury questions as to the credibility and weight to be given

                                         13
 to such testimony." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.
 1991). "If the evidence is sufficient to induce a reasonable juror to believe
 beyond a reasonable doubt that the defendant is guilty, a directed verdict
 should not be given." Id. On appellate review, a directed-verdict decision will
 be reversed only "if under the evidence as a whole, it would be clearly
 unreasonable for a jury to find guilt." Id. Applying these standards, we affirm
 the trial court's denial of a directed verdict on these two counts. It is not
 clearly unreasonable that a juror could believe that Appellant was one of the
 two robbers. The jury was not only reliant upon the modus operandi, but also
 had the benefit of the surveillance videos. This evidence was "sufficient to
 induce a reasonable juror to believe beyond a reasonable doubt that the
 defendant is guilty," id., and the trial court did not err in so finding.
    C. Motion to Sever
       Finally, Appellant argues that the trial court erred in only partially
granting hiS motion to sever the robbery counts from one another. A Jefferson
County Grand Jury indicted Appellant of 47 counts of robbery, occurring
between December 2001 and December 2008, and all of the charges were
initially set to be tried. Appellant moved the trial court to sever the counts into
separate trials based on each robbery, arguing that having one large trial on all
of the counts would confuse the jury, be unduly suggestive, and unduly
prejudicial to Appellant. The trial. court partially granted Appellant's motion to
sever, ultimately allowing the Cominonwealth to choose any twelve-month
period and try only the robberies occurring in that time period. The

                                          14
 Commonwealth chose the twelve counts of robbery (and one count of fleeing

and evading police) from 2008, the most-recent twelve-month period covered by

the indictment.

       Kentucky Rules of Criminal Procedure 6.18 permits offenses to be joined

where "the offenses are of the same or similar character or are based on the

same acts or transactions connected together or constituting part of a common

scheme or plan." However, RCr 8.31 requires a trial court to order separate

trials lig it appears that a defendant or the Commonwealth is or will be

prejudiced by a joinder of offenses . . . the court shall order separate trials of

counts . . . or provide whatever other relief justice requires." This Court has

recognized that "'prejudice' is a relative term" and, in the context of a criminal

proceeding, means only that which is unnecessary or unreasonably hurtful,

given that having to stand trial is, itself, inherently prejudicial." Ware v.

Commonwealth, 537 S.W.2d 174, 176 (Ky. 1976); Romans v. Commonwealth,

547 S.W.2d 128, 131 (Ky. 1977). "We review the trial court's denial of a motion

to sever for abuse of discretion . . . and the burden is on the appellant to show

that the denial was in fact unfairly prejudicial." Peacher v. Commonwealth, 391

S.W.3d 821, 834 (Ky. 2013) (citing Quisenberry v. Commonwealth,       336 S.W.3d

19 (Ky.2011)); see also Rachel v. Commonwealth, 523 S.W.2d 395, 400 (Ky.

1975) ("If upon the consideration of the case a trial judge orders a joint trial, we

cannot reverse unless we are clearly convinced that prejudice occurred and

that the likelihood of prejudice was so clearly demonstrated to the trial judge

as to make his failure to grant severance an abuse of discretion."). "The test for

                                         15
 abuse of discretion is whether the trial judge's decision was arbitrary,

 unreasonable, unfair, or unsupported by sound legal principles."

 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

       "[A] significant factor in determining whether joinder is proper is the

 extent to which evidence of one offense would be admissible in a trial of the

 other offense." Id. at 945. Appellant argues that "[w]ith the exception of the

 events of December 21, 2008—the Wendy's robbery and the subsequent fleeing

 and evading[—]the other robbery counts were different in character, separate in

 time, with no overlapping testimony or evidence." In order to determine

whether evidence of one of the robberies would be admissible in a trial of

 another, we look to our evidentiary rules. Under KRE 404(b),

       [e]vidence of other crimes, wrongs, or acts is not admissible to
       prove the character of a person in order to show action in
       conformity therewith. It may, however, be admissible:

             (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.

      Appellant's identity was at issue, and the Commonwealth was tasked

with proving that he was, indeed, one of the robbers. It set out to do so by

proving that the crimes had a similar modus operandi, which we have held to

be a permissible exception under KRE 404(b). In Edmonds v. Commonwealth,

we held that to be admissible for this purpose, the acts "must generally be so

                                        16
 similar as to constitute a 'signature crime.' See Commonwealth v. Maddox, 955

 S.W.2d 718, 722 (Ky. 1997); Rearick [v. Commonwealth],     858 S.W.2d [185,]

 187-88 [(Ky. 1993)]." 189 S.W.3d 558, 563 (Ky. 2006). However, we did not

end our analysis there. We went on in Edmonds to adopt the holding of Fifth

Circuit Court of Appeals' case, to wit: "a number of common features of lesser

uniqueness, although insufficient to generate a strong inference of identity if

considered separately, may be of significant probative value when considered

together." United States v. Myers, 550 F.2d 1036, 1045 (5th Cir. 1977); see also

Dickerson v. Commonwealth,     174 S.W.3d-451, 468-71 (Ky. 2005).

       In the case at bar, the twelve robberies were all committed within a

seven-month period and under similar circumstances. Appellant points to

some variations between the crimes in support of his argument for severance,

but the robberies all involved one or two men entering businesses (restaurants

in all but one occasion) and conducting "take-over" style robberies. The

robbers typically (but not always) had the victims lie face-down, separated the

manager from the group, demanded money from the safe, and asked for the

surveillance video. As Appellant indicates, the modus operandi does not fit

each and every one of the robberies. However, as our Court held in Edmonds,

when taken together, the "common features of lesser uniqueness . . . may be of

significant probative value when considered together," and, thus, the trial

court's denial of Appellant's motion to sever was proper.

      Even if we were to hold that evidence of the robberies would not be

admissible in a trial for another, that factor's absence does not ring the death

                                        17
 knell to our analysis as to whether the trial court abused its discretion in

 denying a motion to sever. In Brown v. Commonwealth, our predecessor Court

held:

         [t]he evidence of each crime was simple and distinct, the dates of
         the several offenses were closely connected in time, and even
         though such evidence of distinct crimes might not have been
         admissible in separate trials, the promotion of economy and
         efficiency in judicial administration by the avoidance of needless
         multiplicity of trials was not outweighed by any demonstrably
         unreasonable prejudice to the defendant as a result of the
         consolidations.

458 S.W.2d 444, 447 (Ky. 1970). Applying Brown's reasoning, we recently

found "the scale to be tipped in favor of judicial economy. Put simply, [the

appellant] has not met his burden of showing undue prejudice."       Carter v.

Commonwealth, No. 2011-SC-000060-MR, 2013 WL 658121, at *6 (Ky. Feb. 21,

2013).

        In the case at bar, evidence of each of the robberies was simple and

distinct and all the robberies occurred in a seven-month span. Appellant can

show no unfair prejudice occurred by the denial of the motion to sever. The

jury was able to distinguish one crime from the other, as evidenced by the fact

that it acquitted Appellant on five of the twelve charged counts of first-degree

robbery. The scale was "tipped in favor of judicial economy."

        Appellant did not meet his burden of showing that the trial court's denial

of his motion to sever the counts of robbery "was in fact unfairly prejudicial."

Peacher, 391 S.W.3d at 834. We are not "clearly convinced that prejudice

occurred and that the likelihood of prejudice was so clearly demonstrated to



                                         18
the trial judge as to make his failure to grant severance an abuse of discretion."
Rachel v. Commonwealth, 523 S.W.2d 395, 400 (Ky. 1975.). Therefore, we hold

that the trial court did not abuse its discretion in failing to fully grant
Appellant's motion to sever.

                                III. CONCLUSION
      For the foregoing reasons, we affirm Appellant's convictions and
corresponding sentences.
      All sitting. VOTE!


COUNSEL FOR APPELLANT:
Robert Chung-Hua Yang, Assistant Public Defender

COUNSEL FOR APPELLEE:
Jack Conway, Attorney General of Kentucky
Bryan Darwin Morrow, Assistant Attorney General




                                         19
                °Sum= Conti of Ifittlfurkg
                                 2014-SC-000224-MR


ROBERT THORNTON                                                     APPELLANT


                ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.               HON. CHARLES LOUIS CUNNINGHAM, JUDGE
                            NO. 08-CR-003866


COMMONWEALTH OF KENTUCKY                                         RESPONDENT



     ORDER GRANTING MODIFICATION AND DENYING PETITION FOR
                         REHEARING

      Thornton's Petition for Rehearing of the Opinion of the Court, rendered

October 29, 2015, is DENIED. The Commonwealth's Motion for Modification of

the Opinion of the Court, rendered October 29, 2015, is GRANTED. And the

Opinion of the Court is substituted with the attached Opinion of the Court.

      All sitting. All concur.

      ENTERED: February 18, 2016.
