             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
                                          .




ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                          NOT TO BE PUBLISHED

               ,iuprrittr &Turf of 1,firtifuritv
                               2013-SC-000813-MR


STEVEN COLE GOODMAN                                                     APPELLANT


                  ON APPEAL FROM HARDIN CIRCUIT COURT
V.                   HONORABLE KEN HOWARD, JUDGE
                             NO. 12-CR-00626


COMMONWEALTH OF KENTUCKY                                                 APPELLEE



                   MEMORANDUM OPINION OF THE COURT

        AFFIRMING IN PART, VACATING IN PART AND REMANDING


      A jury found Steven Cole Goodman (Goodman) guilty of two counts of

first-degree robbery; four counts of wanton endangerment; one count each of

first-degree assault, first-degree burglary, theft by unlawful taking of a firearm,

and theft by unlawful taking of more than $500; and of being a persistent

felony offender in the second degree. Goodman's convictions arose from a

series of events that began at Carolyn's Corner, a liquor/convenience store,

and continued to the homes of store employee Jason Matz (Matz) and his

neighbor, Gilbert Board (Board). Goodman argues on appeal that his

convictions of first-degree robbery, first-degree assault, and theft as to Matz

and his convictions of first-degree robbery and theft as to Board violated his

right to be free from being placed in jeopardy twice for the same crime.

Goodman also argues that the trial court erred by not granting his motion to
suppress the out-of-court identification by the owner of Carolyn's Corner,

Carolyn Edelen (Edelen). Having reviewed the record and the arguments of the

parties, we affirm in part and vacate in part and remand.

                               I. BACKGROUND

      Carolyn's Corner opens on Saturdays at 8:00 a.m. On Saturday October

27, 2012, Edelen arrived at Carolyn's Corner at approximately 5:30 a.m. to

prepare the store for opening. A man who Edelen later identified as Goodman

entered the store at approximately 6:30 a.m. Edelen told him the store was

closed, and he said that he just wanted to use the telephone. Edelen told

Goodman she did not have her phone but that her husband would be there

soon, and he might let Goodman make a call. Goodman left the store but

stayed on the porch. When Edelen went to lock the door, Goodman pushed his

way back into the store. He told Edelen he had a gun and would shoot her if

she did not give him her car keys. Edelen grabbed a plastic liquor bottle and

swung it at Goodman and told him to leave. Goodman then grabbed a glass

liquor bottle, grabbed Edelen, and the two struggled. Eventually, the two went

out the front door of the store, and Goodman searched Edelen's car in a vain

attempt to find her keys.

      In an attempt to get help, Edelen lied to Goodman and told him that she

lived in Matz's house, which is across the street from the store. Believing that

Edelen would get him money from the house, Goodman took her across the

street to Matz's house. Edelen knocked loudly on Matz's door, which alarmed

Matz, so he got his handgun before going to the door. When Matz opened the
door, Goodman pushed his way into the house and the two struggled for

control of Matz's gun. During the struggle Goodman shot Matz once in the

chest and once in the elbow; however, neither wound was fatal.

         After shooting Matz, Goodman took Matz's gun, left his house, and went

to Board's house, which was one lot away from Matz's. Goodman rang Board's

doorbell and, when Board responded, Goodman pulled the door open and

threatened to shoot and kill Board if he did not give Goodman his car keys.

Board gave Goodman the keys, and Goodman drove away in Board's car.

         After receiving a tip, the police found Board's car parked in the woods

near a trailer owned by Tedra Underwood. Based on information they received

from Underwood and her boyfriend, Eddie Sutton, the police arrested Goodman

the afternoon of October 29, 2012. Later that evening, Edelen went to the

police station where she identified Goodman as the person who had attacked

her.

         As a result of his actions on October 27, Goodman was indicted and

ultimately convicted of the above-listed crimes. We set forth additional facts

as necessary below.

                            II. STANDARD OF REVIEW

         The issues raised by Goodman on appeal require different standards of

review. Therefore, we set forth appropriate standard in our analysis of each

issue.




                                          3
                                  III. ANALYSIS

 1.    Double Jeopardy.

       Goodman was convicted of three crimes related to Matz that are at issue

- theft by unlawful taking, first-degree robbery, and first-degree assault. He

was convicted of two crimes related to Board that are at issue - theft by

unlawful taking and first-degree robbery. Goodman argues that his conviction

of the robbery of Matz precluded his convictions of theft and assault related to

Matz. Similarly, he argues that his conviction of the robbery of Board

precluded his conviction of theft related to Board.

       The double jeopardy clauses of the United States and Kentucky

constitutions provide that a person may not be placed in jeopardy twice for the

same crime. See U.S. Const. amend. V.; Ky. Const. § 13. We review issues

related to violations of the double jeopardy clauses de novo. See Watkins v.

Kassulke, 90 F.3d 138, 141 (6th Cir. 1996).

a.    Goodman's Convictions of First-Degree Robbery and Theft by
      Unlawful Taking as to Matz Violated Goodman's Right to Be Free
      From Being Placed in Double Jeopardy.

      As noted above, Edelen convinced Goodman to go to Matz's house by

stating that it was her house, and she could get money for Goodman. When

they got to Matz's house, Matz and Goodman struggled for control of Matz's

gun, Matz was shot twice, and Goodman took Matz's gun. During the course of

the struggle, Goodman told Edelen that he would kill Matz if she did not give

him money and her car keys. Based on this evidence, the court instructed the

jurors to find Goodman guilty of first-degree robbery if they believed that
Goodman, while armed with a handgun, attempted to steal cash or a vehicle

from Matz by the use or threatened use of physical force. The court also

instructed the jurors to find Goodman guilty of theft by unlawful taking if they

believed he took Matz's handgun, knowing it was not his own, with the intent

to deprive Matz of the gun. The jurors found Goodman guilty under both

instructions.

      Goodman argues that his conviction of theft related to Matz must be

reversed because the robbery and theft convictions arose from the same act

and thus violate the double jeopardy clauses. The Commonwealth, albeit with

a little reluctance, concedes that Goodman is correct.

      We have previously held that "[i]n order to determine whether a person

may properly be subjected to prosecution for multiple offenses based upon one

act, courts use two main guideposts—the B/ockburgeri test and the expressed

intent of the legislature." Lloyd v. Corn., 324 S.W.3d 384, 387 (Ky. 2010)

(footnote added). In Lloyd, we held that, under the Blockburger test, robbery

and theft would be two separate offenses because robbery requires the proof of

elements that theft does not, i.e. the perpetrator of robbery must threaten to

use or use force and be armed with a deadly weapon or dangerous instrument.

Id. at 388. However, we also held that, when both theft and robbery arise from

the same act, the legislature expressly intended "for theft by unlawful taking to

be subsumed into robbery." Id. at 390. Therefore, a defendant cannot be

convicted of both crimes if they arise from the same act.


      1   Blockburger v. United States, 284 U.S. 299 (1932).

                                             5
      Here, Goodman's robbery and theft by unlawful taking convictions as to

Matz arose from the same act; therefore, we agree that the convictions violated

the double jeopardy clauses. As noted by the Commonwealth, in such

situations the remedy is to vacate the conviction for the lesser offense.    Kiper v.

Corn., 399 S.W.3d 736, 746 (Ky. 2012), as modified on denial of reh'g (Apr. 25,

2013). In this case, theft by unlawful taking is the lesser offense; therefore,

Goodman's conviction for theft by unlawful taking as to Matz is vacated.

b.    Goodman's Convictions of First-Degree Robbery and Theft by
      Unlawful Taking as to Board Violated the Prohibition Against Placing
      Goodman in Jeopardy Twice for the Same Crime.

      The jury convicted Goodman of two crimes related to Board - first degree

robbery for the theft of Board's car keys and theft by unlawful taking for the

theft of Board's car. The Commonwealth, with little reluctance, concedes that

the two convictions, which arose from the same offense, violate the prohibition

against double jeopardy. For the reasons set forth above, we agree. Therefore,

Goodman's conviction for theft by unlawful taking as to Board is vacated.

c.    Goodman's Convictions of First-Degree Robbery and First-Degree
      Assault as to Matz Did Not Violate the Prohibition Against Placing
      Goodman in Jeopardy Twice for the Same Crime.

      As previously noted, Goodman and Matz struggled for control of Matz's

gun, Goodman shot twice, and Goodman took Matz's gun. The court

instructed the jury on both first-degree robbery and first-degree assault. As

noted above, there are two guideposts for determining if conviction of two

crimes arising from one act violates the double jeopardy prohibition - the

Blockburger test and the express intent of the legislature.
      Under Blockburger, the question is whether the statutory provisions of

each offense require proof of a different fact or different facts.   Lloyd 324

S.W.3d at 387. A person is guilty of first-degree robbery when

      in the course of committing theft, he uses or threatens the
      immediate use of physical force upon another person with intent to
      accomplish the theft and when he:

      (a) Causes physical injury to any person who is not a participant in
      the crime; or

      (b) Is armed with a deadly weapon; or

      (c) Uses or threatens the immediate use of a dangerous instrument
      upon any person who is not a participant in the crime.

Kentucky Revised Statute (KRS) 515.020.

      A person is guilty of first-degree assault when

      a) He intentionally causes serious physical injury to another
      person by means of a deadly weapon or a dangerous instrument;

      or

       (b) Under circumstances manifesting extreme indifference to the
      'value of human life he wantonly engages in conduct which creates
       a grave risk of death to another and thereby causes serious
       physical injury to another person.

KRS 508.010.

      First-degree robbery requires a person to use or threaten the use of

physical force with the intent to commit a theft. Simultaneously, the person

must cause physical injury, or be armed with a deadly weapon, or use or

threaten to use a dangerous instrument. First-degree assault requires a

person to intentionally cause serious physical injury by using a deadly weapon

or dangerous instrument. In the alternative, it requires the person to manifest


                                           7
extreme indifference to human life and to wantonly engage in conduct that

causes serious physical injury. First-degree robbery requires proof of a theft,

first-degree assault does not. First-degree assault requires proof of a serious

physical injury, first-degree robbery does not necessarily require proof of any

injury. Therefore, under Blockburger, the two statutes require proof of different

facts and conviction of both offenses does not violate the prohibition against

double jeopardy.

      However, as in Lloyd, our analysis must also include a determination if

the legislature intended for assault to be subsumed into robbery. Having

reviewed the statutes and relevant case law, we hold that it did not for three

reasons.

      First, in Lloyd, we held that theft is subsumed into robbery in large part

because both statutes require a finding that a theft occurred. In other words,

the legislature devised the statutes so that theft is a prerequisite to both

offenses. There is no such similar prerequisite for conviction of robbery and

assault. A person can commit a robbery without injuring someone but cannot

commit assault without doing so. Furthermore, a person can commit assault

without stealing something but cannot commit robbery without doing so.

Thus, the robbery and assault statutes lack the overlapping prerequisite found

in the robbery and theft statutes.

      Second, as we noted in Lloyd, the commentary to the first-degree robbery

statute specifically states that "all of the elements of the crime of theft as set

forth in KRS 514.030 are incorporated into" first-degree robbery. 324 S.W.3d


                                        8
at 390. No such incorporating language for KRS 508.010, the first-degree

assault statute, is contained in the commentary to KRS 515.020, the first-

degree robbery statute. 2 Therefore, the statutes do not show an express

legislative intent for assault to be subsumed by robbery.

       Third, the instruction for first-degree robbery stated the jurors had to

believe that, in the course of a theft, Goodman "used or threatened the

immediate use of physical force upon Jason Matz." It did not say the jurors

had to believe that Goodman caused injury to Matz. The instruction for first-

degree assault stated that the jurors had to believe Goodman caused serious

physical injury to Matz. It did not say the jurors had to believe that Goodman

committed a theft. In Fields v. Commonwealth, 219 S.W.3d 742, 746 (Ky.

2007), we held that similar instructions and resultant convictions did not

violate the double jeopardy clause. We see no reason to alter that opinion.

Therefore, we affirm Goodman's convictions of first-degree robbery and first-

degree assault as to Matz.

       Finally, we note that Goodman relies in large part on Commonwealth v.

Varney, 690 S.W.2d 758, 759 (Ky. 1985), wherein we held that assault is a

lesser included offense of robbery and a defendant cannot be convicted of both

crimes arising from the same act. However, as the Commonwealth notes,

Varney relies in large part on our holding in Sherley v. Commonwealth, 558


        2 The commentary at the beginning of KRS Chapter 515 does state that

"[r]obbery is a combination of two other crimes (theft and assault). . . ." However, the
commentary to KRS 515.020 only states that "all of the elements of the crime of theft .
.. are incorporated into" first-degree robbery. It does not state that all of the elements
of assault are incorporated.

                                             9
S.W.2d 615 (Ky. 1977), a case we have since declared to be "an aberration in

our double jeopardy decisional law." Dixon v. Commonwealth, 263 S.W.3d 583,

589 (Ky. 2008). Therefore, Varney is of no persuasive or precedential value.

2.    The Trial Court's Denial of Goodman's Motion to Suppress Edelen's
      Identification Was Not Error.

      The police arrested Goodman the afternoon of October 29, 2012. Later

that day, Kentucky State Police Detective Jonathan Vaughn contacted Edelen,

told her that the police had a suspect in custody, and asked her to come to the

police station to see if the suspect was the person who had attacked her. At

the police station, Edelen watched via closed circuit television as an officer and

Goodman spoke in an interrogation room. Edelen then identified Goodman as

the man who had attacked her and Matz.

      Prior to trial, Goodman filed a motion to suppress Edelen's identification

arguing that it was fatally tainted because it was made under highly suggestive

and unreliable circumstances. Following an evidentiary hearing, the court

denied Goodman's motion. On appeal, Goodman argues that the trial court

erred by not suppressing Edelen's identification.

      Appellate review of a trial court order on a suppression motion
      involves a two-step analysis. First, the factual findings of the trial
      court are conclusive if supported by substantial evidence. Second,
      if the findings are supported by substantial evidence, the appellate
      court conducts a de novo review to determine whether the trial
      court's ruling is correct as a matter of law.

Anderson v. Commonwealth, 352 S.W.3d 577, 583 (Ky. 2011)(internal citations

omitted).




                                        10
      In its on-the-record ruling, the trial court first found that the single-

person showup identification Edelen made was "inherently suggestive."         See

Rodriguez v. Commonwealth, 107 S.W.3d 215, 218 (Ky. 2003). Based on that

finding, the court then undertook an analysis of the totality of circumstances

surrounding Edelen's identification to determine the likelihood those

circumstances led to an "'irreparable misidentification' by the witness."    Id.

      In assessing the totality of the circumstances, a trial court must consider

the following five factors:

      (1) [T]he opportunity of the witness to view the criminal at the time
      of the crime[;] (2) the witness's degree of attention[;] (3) the
      accuracy of the witness's prior description of the criminal[;] (4) the
      level of certainty demonstrated by the witness at the
      confrontation[;] and (5) the length of time between the crime and
      the confrontation.

Id. The trial court addressed each of those factors in its order, finding that

there was not a likelihood that Edelen had irreparably misidentified Goodman

as a result of the single person showup. We agree.

      As to the first factor, Edelen testified it was dark outside when Goodman

entered the store, and she had not turned on the overhead lights. However,

she testified a Pepsi machine and a light she had on behind the counter

provided sufficient light for her to see Goodman clearly. Furthermore, she

testified Goodman made no attempt to hide or obscure his face; he walked up

to her when he asked to use the phone; the two were less than three feet apart

when they struggled in the store; there was a security light on outside the

building; and she could see Goodman's face when he was ransacking her car.



                                         11
The trial court found that, based on the preceding facts, Edelen had sufficient

opportunity to view Goodman. We discern no error in the trial court's finding,

thus, this factor weighs in favor of the Commonwealth.

      As to the second factor, Edelen testified that she was afraid; however,

she made several attempts to get Goodman outside the store so she could lock

the door. When those attempts failed, she devised a plan to get Goodman to

Matz's house where she believed she could get help. The trial court found this

evidence indicated that, despite her fear, Edelen's attention was sufficiently

focused to enable her to identify Goodman. Goodman argues this finding by

the trial court was not supported by the evidence because Edelen did not

testify directly about her degree of attention. We disagree.

      There need not be direct testimony about a victim's degree of attention

because "attention during traumatic experience is presumed to be acute."

Rodriguez v. Commonwealth, 107 S.W.3d 215, 218 (Ky. 2003) citing to

Levasseur v. Pepe, 70 F.3d 187, 195 (1st Cir.1995). Furthermore, the trial

court's inference that Edelen's ability to devise plans to extricate herself from

the situation indicated she was able to focus her attention despite her fear is

logical and supported by the evidence. Thus, this factor weighs in favor of the

Commonwealth.

      As to the third factor, Detective Vaughn testified that when he

interviewed Edelen after the fact, she gave a "pretty good description," of

Goodman and what he was wearing. Detective Vaughn did not set forth any

details of Edelen's description, stating that he would need to review his notes to


                                         12
do so; however, neither the Commonwealth nor Goodman asked Detective

Vaughn to review those notes. Detective Vaughn also testified that he had

reviewed security video, but, due to the quality of the video, he was unable to

identify Goodman. However, he testified that the person in the video was

wearing dark jeans with a pattern on the back.

       Edelen testified that the perpetrator was slightly taller than she is,

weighed approximately 150 pounds, and wore jeans with a white mark or spot

on the back, a black pullover sweatshirt, and a gray toboggan. 3 She reviewed

photographs of a toboggan recovered from Matz's house and jeans taken from

Goodman's house and identified those as what Goodman was wearing. The

trial court noted that this testimony was consistent but failed to delineate with

what it was consistent. Goodman now argues that this alleged failing by the

trial court is fatal to its order denying the motion to suppress. We disagree for

three reasons.

       First, Goodman did not ask Detective Vaughn to review his notes or

otherwise attempt to get a better delineation of the description Edelen made the

morning of the crime. Furthermore, he did not ask the court to make any

additional findings regarding this factor. Second, Edelen's description of

Goodman's jeans was consistent with the jeans in the photograph and with

Detective Vaughn's description from the video tape. Finally, this factor is but

one of five and is not necessarily dispositive. At worst, the trial court's failure



       3   A toboggan can refer to a sled or to a knit cap. In this case, it refers to a knit
cap.

                                               13
to determine explicitly whether Edelen's description the day of the crime was

consistent with her testimony during the hearing may weigh in favor of

Goodman; however, it does not, as a matter of law, outweigh the other factors.

      As to the fourth factor, Edelen testified she would never forget the

perpetrator's face, and she knew as soon as she saw him, without a doubt, that

Goodman was the perpetrator. Goodman appears to be arguing that the fact

Detective Vaughn asked Edelen to come to the police station to look at a

suspect negates Edelen's testimony. We disagree.

      The trial court was free to believe Edelen, which it did. Furthermore,

Edelen's testimony was bolstered by Detective Vaughn's testimony that, when

Edelen saw Goodman, she became upset and began shaking. Therefore, this

factor weighs in favor of the Commonwealth.

      The final factor, the time between the crime and the in-person

identification was approximately 48 hours. Goodman correctly makes no

argument that this factor should weigh in his favor.

      In summary, four of the five reliability factors weigh in favor of the

Commonwealth. While the fifth factor may weigh in favor of Goodman, it does

not, as a matter of law, outweigh the other four. Therefore, we discern no error

in the trial court's denial of Goodman's motion to suppress Edelen's

identification.

                                IV. CONCLUSION

      For the foregoing reasons Goodman's convictions for theft by unlawful

taking as to Matz and Board are vacated and this matter is remanded to the


                                        14
trial court for entry of a consistent judgment. Goodman's remaining

convictions are affirmed. Because Goodman was sentenced to thirty years'

imprisonment for the robbery convictions and the sentences for his other

convictions were ordered to run concurrently therewith for a total of thirty

years' imprisonment, Goodman's sentence will remain unchanged.

      Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ.,

sitting. All concur.



COUNSEL FOR APPELLANT:

Linda Roberts Horsman
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

James Daryl Havey
Assistant Attorney General




                                        15
