         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    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 l, 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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.
                                                    RENDERED: JUNE 25, 2009
                                                       NOT TO BE PUBLISHED


               ,ouprmur (~vurf of ~ir
                               2007-SC-000146-MR

                                                                         - yutlaq-
WILLIAM CAMPBELL                                                         APPELLANT



                ON APPEAL FROM KENTON CIRCUIT COURT
V.            HONORABLE PHILIP D. OVERSTREET, SPECIAL JUDGE
                           NO . 05-CR-00496


COMMONWEALTH OF KENTUCKY                                                 APPELLEE


                  MEMORANDUM OPINION OF THE COURT

               AFFIRMING IN PART AND REVERSING IN PART

      Appellant, William Campbell, was convicted by a Kenton County jury of

twenty (20) counts of sodomy in the first degree (under age 12), two (2) counts

of use of a minor in a sexual performance, criminal abuse in the first degree,

rape in the second degree, and sodomy in the first degree (forcible compulsion) .

The jury recommended, and the trial court imposed, a sentence of fifty (50)

years for the sodomy convictions, twenty (20) years for the use of a minor in a

sexual performance convictions, ten (10) years for the criminal abuse

conviction, ten (10) years for the rape in the second degree (forcible

compulsion) conviction, and twenty (20) years for the sodomy in the first degree

conviction, all to be served concurrently . This appeal followed.
                                         Facts

       Appellant lived with his wife, Karen, and their five (5) children, A.L.C ., 1

J . C . ,2 A .C ., 3 W.C ., and B .C ., at various addresses in Ohio and Kentucky,

 including the house where most of the abuse occurred, 37 Euclid Ave ., in

Ludlow, Kentucky . The family had been investigated for years by social

services for the neglect of their children, resulting in twenty (20) social service

reports in Kentucky and twelve (12) in Ohio. The reports dealt primarily with

an extreme lack of cleanliness in the home, and the medical neglect of A.L .C.,

Appellant's developmentally-delayed daughter, who suffered from a seizure

disorder. As a result, the children were temporarily removed from the home on

three (3) separate occasions .

       Allegations of sexual abuse began in the fall of 2004, upon A.L.C .'s

pregnancy . She gave birth on December 22, 2004 . Suspected fathers ranged

from A.L.C.'s classmates at school, to Appellant, Appellant's brother, Stephen

Campbell, and Appellant's son, A.C . DNA testing was performed on Appellant,

and A.C. The testing confirmed that A.C. was the father. During the

investigations surrounding A.L .C .'s pregnancy, both A.C . and J.C . alleged that

Appellant had sexually abused them and A.L.C . Appellant was eventually

charged and convicted of the multiple counts aforementioned.


      i A .L .C. was twelve (12) or thirteen (13) during the abuse on Euclid Ave. and
twenty-one (21) or twenty-two (22) at trial.
      2 J.C. was ten (10) and eleven (11) during the abuse on Euclid Ave. and
nineteen (19) at trial.

       3 A.C. was six (6) when the abuse started, ten (10) during the abuse on Euclid
Ave., and fifteen (15) during the conduct which served as the basis for the use of a
minor in a sexual performance charge .
                                            2
       Prior to trial, Appellant worked out a plea bargain with the

 Commonwealth . With the consent of the victims, Appellant agreed to plead

 guilty to two (2) counts of sodomy in the second degree in exchange for the

dismissal of the other charges and a recommendation for five (5) to ten (10)

years on each charge, with the parties being able to argue the penalty at

sentencing. Thereafter, Appellant attempted to enter an Alford plea, but the

trial court refused to accept the plea because of a perceived conflict with entry

into the Sexual Offender Treatment Program (SOTP) after incarceration . The

matter then went to trial.

       At trial, J .C. was the first complaining witness to take the stand.

Appellant was charged with anally sodomizing J .C . sometime during the period

of January l, 1997 through December 31, 1998 . However, when a visibly

distraught J .C . testified on the late afternoon of October 16, 2006, he testified

that Appellant merely touched his lower abdomen while he was wearing

nothing but underwear. As J. C.'s direct examination occurred late      in the day
and because J .C. was so distraught, the trial court recessed for the day .

       During the overnight recess, the prosecution was permitted to confer

with J.C. The next morning, J .C . testified that Appellant pulled his underwear

off, turned him over, and stuck his penis into his "butt ." A.C . later testified

that he witnessed Appellant anally sodomizing J.C . but did not interrupt

because he was afraid he would be "forced to do something."

      J.C. also testified that he once saw Appellant sitting in a chair watching

A.C . and A.L.C . having sex in his sister's bedroom. Lastly, J.C . testified that

Appellant would make him stand in the corner against the wall for long periods
                                          3
of time, to the point where his knees would buckle, and his body would leave

oil stains on the wall.

       A.C . testified after J.C. He testified that, while the family lived in Ludlow,

Appellant repeatedly forced him to have both oral and anal sex. A .C. said that

Appellant would hold him down and put his penis into A.C .'s mouth, while A.C.

would try and fight him off. In addition, A .C . claimed Appellant would push

him down on the floor, hold him down, and anally penetrate him. A.C . alleged

the acts of oral sex occurred approximately twelve (12) - fifteen (15) times and

the alleged anal sex occurred approximately twelve (12) - twenty (20) times .

Lastly, A.C. also testified as to the occurrence of group sexual activity with

A.L.C., Appellant, and Stephen Campbell, Appellant's brother.

       Detective Brian Frodge of the Covington Police Department testified that

he spoke with Appellant on two (2) separate occasions in 2005 regarding the

sexual abuse allegations. In their first interview, Detective Frodge testified that

Appellant denied all the allegations of sexual abuse . In the second interview,

however, Appellant stated that he had no conscious memory of sexually

abusing his children, but that if he did do it, he did not remember it. Appellant

then told Det. Frodge that if he did it, he must have mistaken his son, J .C ., for

his wife.

      The jury found Appellant guilty of twenty-one (21) counts of sodomy in

the first-degree (under age 12), two (2) counts of use of a minor in a sexual

performance, criminal abuse in the first-degree, rape in the second-degree, and

sodomy in the first-degree (forcible compulsion) . Appellant was convicted and

sentenced as aforementioned .
      Appellant now argues the trial court erred by 1) denying his motion for

directed verdict on multiple counts of sodomy in the first-degree pertaining to

A.C . ; 2) using twenty (20) duplicate jury instructions VI through XXV - which

correspond to Counts 2 through 21 of the indictment - without identifying

separate and distinct incidents of sodomy in the first degree pertaining to A.C . ;

3) recessing trial to allow the Commonwealth to confer overnight with a key

prosecution witness during his direct testimony ; and 4) refusing to accept

Appellant's Alford plea.

      For reasons set out below, we find the trial court erred in using identical

instructions.

                I. Appropriateness of Multiple Sodomy Counts

      Appellant first argues that there was insufficient evidence to convict him

of twenty (20) counts of sodomy in the first-degree involving A.C. (Counts 2

through 21 of the indictment) . He also makes a related claim that he was

denied a unanimous verdict because the language of Instructions VI through

XXV (corresponding to Counts 2 through 21 of the indictment) was identical

and contained no differentiating factors separating each instance of sodomy .

Because these arguments overlap, we will address them together. See Miller v.

Commonwealth, 77 S.W .3d 566, 576 (Ky. 2002) .

      We note that "[t]he proper procedure for challenging the sufficiency of

evidence on one specific count is an objection to the giving of an instruction on

that charge." Seay v . Commonwealth , 609 S.W .2d 128, 130 (Ky. 1980) .

      [T]hat rule applies only when there are two or more charges and
      the evidence is sufficient to support one or more, but not all, of the
      charges . In that event, the allegation of error can only be preserved
                                        5
       by objecting to the instruction on the charge that is claimed to be
       insufficiently supported by the evidence.

Combs v. Commonwealth, 198 S .W.3d 574, 578-579 (Ky. 2006) ; see also Miller ,

77 S .W.3d at 577, Campbell v. Commonwealth , 564 S .W.2d 528, 530-31

(Ky.1978) ; Kimbrough v. Commonwealth, 550 S.W .2d 525, 529 (Ky .1977) .

       Here, Appellant made only a general motion for directed verdict at the

end of the Commonwealth's case-in-chief, then renewed his motion at the end

of the presentation of the Commonwealth's rebuttal evidence, specifically

stating the motion was being renewed on the same grounds previously argued

to the court. Thus, pursuant to our holdings in Pate v. Commonwealth, 134

S.W.3d 593, 597-598 (Ky. 2004) and Gibbs v. Commonwealth, 208 S .W.3d

848, 857 (Ky. 2006), Appellant's general motion for directed verdict did not

properly preserve this issue for appeal. Therefore, Appellant requests palpable

error review pursuant to RCr 10.26.

      Under RCr 10 .26, an unpreserved error may be reviewed on appeal if the

error is "palpable" and "affects the substantial rights of a party." Even then,

relief is appropriate only "upon a determination that manifest injustice has

resulted from the error." Id . An error is "palpable," only if it is clear or plain

under current law. Brewer v. Commonwealth, 206 S .W .3d 343 (Ky. 2006) .

Generally, a palpable error "affects the substantial rights of a party" only if "it

is more likely than ordinary error to have affected the judgment ." Ernst v.

Commonwealth , 160 S.W.3d 744, 762 (Ky. 2005) . We note that an

unpreserved error that is both palpable and prejudicial, still does not justify

relief unless the reviewing court further determines that it has resulted in a
manifest injustice ; in other words, unless the error so seriously affected the

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

jurisprudentially intolerable ." Martin v. Commonwealth, 207 S .W.3d 1, 4 (Ky.

2006) .

       In this regard, "[i]t is [] elementary that the burden is on the government

in a criminal case to prove every element of the charged offense beyond a

reasonable doubt and that the failure to do so is an error of Constitutional

magnitude." Miller, 77 S .W.3d at 576 . Plainly, a defendant cannot be

convicted of a criminal offense except by a unanimous verdict. Ky. Const . § 7;

Cannon v. Commonwealth, 291 Ky. 50, 163 S .W .2d 15 (1942) ; RCr 9.82(1) .

Therefore, we have held that:

       [w]hether the issue is viewed as one of insufficient evidence, or
       double jeopardy, or denial of a unanimous verdict, when multiple
       offenses are charged in a single indictment, the Commonwealth
       must introduce evidence sufficient to prove each offense and to
       differentiate each count from the others, and the jury must be
       separately instructed on each charged offense .

Miller,' 77 S .W .3d at 576 .

       Prior to our recent decision in Harp v. Commonwealth , 266 S.W .3d 813

(Ky. 2008), it was possible for an instructional error such as this to be "cured"

by the Commonwealth's introduction into evidence and explanation during

closing argument of the identifying characteristics from which the jury could

determine the existence of facts proving each of the offenses, rendering any

error in the instructions harmless . See Bell v. Commonwealth , 245 S.W .3d

738, 744 (Ky. 2008) ("The Commonwealth, in its closing, identified the five

distinct incidents .") . However, in Harp, we held that "arguments of counsel are
not [now] sufficient to rehabilitate otherwise erroneous or imprecise jury

instructions" because the arguments of counsel are not evidence . 266 S .W .3d

at 820 (citing Dixon v. Commonwealth, 263 S .W.3d 583, 592-593 (Ky . 2008)) .

Harp further reaffirmed the proposition that:

      a party claiming that an erroneous jury instruction, or an
      erroneous failure to give a necessary jury instruction [is harmless
      error], bears a steep burden because we have held that "[i]n this
      jurisdiction it is a rule of longstanding and frequent repetition that
      erroneous instructions to the jury are presumed to be prejudicial ;
      [thus,] an appellee claiming harmless error bears the burden of
      showing affirmatively that no prejudice resulted from the error."

266 S.W.3d at 818 .

      Thus, it is now settled that a trial court errs in a case involving multiple

identical charges if its instructions to the jury fail to factually differentiate

between the separate offenses according to the evidence. Combs, 198 S .W.3d

at 580 ("The error here was the failure to factually differentiate between the

separate offenses."). Because the trial court used identical jury instructions on

twenty (20) counts of first degree sodomy, none of which could be distinguished

from the others as to what factually distinct crime each applied to, Appellant

was presumptively prejudiced . Nor has the Commonwealth met its burden to

show affirmatively that "no prejudice resulted from the error ." Harp, 266

S.W.3d at 818 .

      [I]t must be evident and clear from the instructions and verdict
      form that the jury agreed, not only that [Appellant] committed one
      count of sodomy, but also exactly which incident they all believed
      occurred [and voted for] . Otherwise, [Appellant] is not only denied
      a unanimous verdict, but is also stripped of any realistic basis for
      appellate review of his conviction for sodomy . In other words,
      without knowing which instance of sodomy is the basis of his
      convictio n, [Appellant] cannot ra tionally challenge the sufficiency
      of the evidence on appeal .
 Bell, 245 S .W.3d at 744.

       Being error, we now hold instructional error, such as this, to be palpable

 error. Id . ("[T]he instructional error explained above . . . constituted palpable,

 reversible error .") ; cf. Commonwealth v. Davidson, --- S .W.3d ----, 2009 WL

 424931 *1, *3 (Ky. February 19, 2009) . Yet, that is not to say that every error

in jury instructions rises to the level of palpable error.

       As this Court noted in Nichols v. Commonwealth, 142 S .W.3d 683, 691

(Ky . 2004), an alleged error is not reviewable under RCr 10.26 unless (1) it is

"[a] palpable error," and (2) "a determination is made that manifest injustice

[has] resulted from the error." By definition, the word "palpable" means

"[e]asily perceived ; obvious." Id. ( uotin American Heritage Dictionary of the

English Language 946 (4th ed. 2000)) . Thus, a "palpable error" is an error that

is easily perceived or obvious. Id . In Brock v. Commonwealth , 947 S.W.2d 24,

28 (Ky. 1997), this Court "interpreted the requirement of `manifest injustice' as

used in RCr 10.26 . . . to mean that the error must have prejudiced the

substantial rights of the defendant, i.e ., a substantial possibility exists that the

result of the trial would have been different." (internal citation omitted)

      Here, it is obvious that the identical jury instructions used in this case

patently failed to adequately differentiate the alleged instances of multiple

sodomy. Therefore, the error was palpable . Further, as the trial court's error

"prejudiced the substantial rights of the defendant," the use of identical jury

instructions resulted in manifest injustice, potentially depriving Appellant of

his right to a unanimous verdict and to challenge the sufficiency of the
evidence on appeal. Id . Thus, we reverse Appellant's twenty (20) convictions

for sodomy in the first degree and remand for a new trial consistent with this

opinion .

       Having found cause for reversal, we will consider such other issues as

may call for dismissal, or are capable of repetition .

                               II. Overnight recess

      Appellant next argues the trial court committed reversible error when it

recessed for the night and allowed the Commonwealth to speak to J .C . about

his ability to continue with his testimony.

      Toward the end of the first day of trial, around 4:00 p .m ., the

Commonwealth asked J.C . about the sexual abuse he received at his father's

hands . J.C . was obviously distraught, emotionally upset, and "on the verge of

an emotional breakdown." He testified that Appellant just touched his lower

abdomen while he was wearing nothing but underwear, testimony which was

inconsistent with his many previous statements . The prosecutor then

attempted to elicit testimony regarding the additional sexual acts J .C . had told

the officer about, but got no response . Noting his multiple statements to the

contrary, she then requested a bench conference to find out if J.C . was going to

"stick with" his current story denying Appellant's sexual wrongdoing .

      Appellant then objected, arguing that questioning J.C. during the course

of his testimony outside of the presence of the court was improper . After

discussions and given the lateness of the hour -nearly 5 :00 p.m. - the trial

court recessed for the day, allowing the Commonwealth to determine if the

distraught victim would be able to continue to testify. The trial court
                                        10
 specifically admonished the Commonwealth not to coach the witness in so

 doing.

          Overnight, J .C. determined that he would be able to continue . The next

 morning, both J.C. and the Commonwealth, under oath, verified there had

 been no coaching . Nonetheless, Appellant renewed his objection to the

 conference between the complaining witness and the Commonwealth and

 requested either J.C .'s testimony be stricken or a mistrial declared .

       Although there is no Kentucky case law directly on point,4 Reams v.

Stutler, 642 S.W. 2d 586, 589 (Ky. 1982) provides that "[t)he [separation of

witnesses] rule clearly does not restrict trial counsel's freedom to confer with

his own witness during trial." Moreover, several other jurisdictions have

determined that it is within the trial court's discretion as to whether to allow

the prosecution to confer with a testifying witness during a recess . See U.S. v.

DeJongh, 937 F.2d 1 (1 st Cir. 1991) (finding no error where prosecutor and

witness met privately between witness's direct examination and cross-

examination) ; U.S. v. Malik, 800 F.2d 143 (7th Cir. 1986) (finding no error

where witness changed testimony after prosecutor routinely conferred with

witness during recesses without trial court's authorization) ; United States v.

Calderin-Rodri uez, 244 F.3d 977, 985 (8th Cir . 2001) (applying Fed.R.Evid .

615; holding prosecutor did not violate sequestration order by conferring with

witness about his testimony during overnight break in trial); People v. Branch ,

       4 We note Beckham v. Commonwealth, 248 S .W.3d 547 (Ky. 2008) and Geders
v. United States , 425 U.S. 80 (1976) address application of the "rule on witnesses" in
an overnight recess. However, both cases analyze application of the sequestration rule
on a defendant in a criminal trial, who is guaranteed the assistance of counsel by the
Sixth Amendment of the United States Constitution . Here, neither case is applicable,
as testifying witnesses are not guaranteed the assistance of counsel.
                                            11
 634 N .E.2d 966 (N .Y. 1994) (determining that trial court did not abuse its

 discretion when it allowed recess so that prosecutor could privately confer with

 witness after witness changed testimony on direct examination) ; Will v.

 Commonwealth , 525 S.E.2d 37 (Va. Ct. App . 2000) (determining that trial court

 did not abuse its discretion when it allowed mid-testimony conference between

prosecutor and victim so that prosecutor could speak to and comfort victim) ;

State v. Delarosa-Flores , 799 P.2d 736 (Wash. Ct. App. 1990) (finding no abuse

of discretion in allowing recess and conference between prosecutor and victim

when victim changed testimony after conference) . Contra People v. Pendleton ,

394 N.E .2d 496 (Ill. App. 1979) (determining that prosecutorial overreaching

occurred when prosecutor held conference with witness after witness was

unable to identify attackers on direct examination and prosecutor attempted to

conceal conference from trial court).

       Accordingly, we find that it was within the trial court's discretion as to

whether to allow the Commonwealth to confer with J .C . during the overnight

recess and thus, there was no error.

                                 III. Alford Plea

       Lastly, Appellant argues the trial court abused its discretion by refusing

to accept Appellant's Alford plea, pursuant to North Carolina v. Alford , 400

U.S . 25 (1970) .

       Before trial, Appellant attempted to enter an Alford plea to the charges

against him . In exchange for his guilty plea, the Commonwealth offered to

dismiss 24 out of 26 counts of the indictment and reduce the two remaining

charges to sodomy in the second degree . The agreement, made with the
                                         12
consent of the victims, J.C. and A.C., suggested a sentence of five (5) to ten (10)

years on the remaining charges . The trial court (Special Judge William Wehr),

however, would not accept the Alford plea because of the severity of the

charged offenses and because he believed the Sexual Offender Treatment

Program (SOTP) could not be undertaken without the admission of guilt by

Appellant. The court would, however, accept a standard guilty plea.

      Two days later, Appellant filed a motion to reconsider and asked the trial

court (Special Judge Robert Overstreet) to reconsider the prior ruling. In

support of his position that there was no conflict in his entering an Alford plea

and attending SOTP once incarcerated, Appellant cited Taylor v.

Commonwealth , No. 2004-CA-001339-MR, 2005 WL 2106585 (Ky. App . Sept 2,

2005) . Special Judge Overstreet, however, declined to disturb the earlier

ruling.

      It is well-settled that a court may refuse to accept a guilty plea. Yell v.

Commonwealth , 242 S.W.3d 331, 341 (Ky. 2007); RCr 8 .08. It is also settled

that a defendant has no constitutional right to plea bargain . Hoskins v.

Maricle, 150 S.W.3d 1, 21 (Ky. 2004) . We note that:

      Federal courts generally recognize three types of plea bargains . A
      "sentence bargain" is an agreement in which the prosecutor agrees
      to recommend or not to oppose a particular sentence in exchange
      for a guilty plea to the original charge . Since sentencing is a
      function of the judiciary, a judge's discretion to accept or reject a
      sentence bargain is unfettered. A "charge bargain," is an
      agreement by the prosecutor to reduce the original charge in
      exchange-for the defendant's agreement to plead guilty to the
      reduced charge, and/or to dismiss some charges in exchange for
      pleas of guilty to others . A "hybrid bargain" is a charge bargain
      accompanied by an agreement by the prosecutor to recommend or
      not oppose a particular sentence in exchange for a plea of guilty to
      the reduced charges . Charge bargains affect the court's sentencing
                                        13
       authority only incidentally, in the same manner as a prosecutor's
       decision whether to initiate charges restrains the court's
       sentencing powers. Hybrid bargains implicate not only the
       prosecutorial authority of the Executive but also the adjudicatory
       and sentencing authority of the Judiciary and the discretion of a
       trial court to accept or reject a guilty plea.

Id . at 22 . (internal citation omitted)

       Thus, a charge bargain, which dismisses or amends one or more charges

in exchange for a guilty plea on the reduced charges, or a hybrid bargain,

which is a charge bargain with an additional agreement as to sentencing, can

be approved or rejected at the discretion of the trial court, so long as the court

independently reviews the agreement and sets forth the prosecutor's reasons

for the bargain and the court's reasons for rejecting the bargain. Id. at 22-24 .

       Although Appellant argues both Judges Wehr and Overstreet abused

their discretion by rejecting Appellant's Alford plea, we disagree .

       Here, in exchange for Appellant's guilty plea, the Commonwealth offered

to reduce two first-degree sodomy counts to sodomy in the second-degree and

to dismiss the remaining twenty-four (24) counts. Moreover, the

Commonwealth would recommend a sentence of five (5) to ten (10) years on the

two remaining counts, to be argued by the parties at final sentencing . Thus,

this bargain would best be described as a hybrid plea.

      In order to properly reject a charge or hybrid plea, the trial court must 1)

independently review the agreement, 2) set forth the prosecutor's reasons for

the bargain, and 3) set forth the court's reasons for rejecting the bargain. Id . at

24 . From the record, it is clear the trial court reviewed the plea agreement .

Further, the plea agreement states on its face the reason the Commonwealth

                                           14
 made the offer - because the victims consented to it. Lastly, Judge Wehr

 summarized his reasons for denying the plea agreement - the severity of the

 charges and Appellant's insistence on an Alford plea, both of which are valid

 reasons for rejecting a guilty plea. See Hoskins, 150 S .W .3d at 24-25; Yell, 242

 S .W . 3d at 341 .

        Thus, as the trial court complied with the Hoskins requirements for

rejecting a charge or hybrid plea, the trial court did not abuse its discretion in

rejecting the plea agreement.

                                    Conclusion

        For the foregoing reasons, we reverse Appellant's conviction of twenty

(20) counts of sodomy in the first degree (under age 12) but affirm the

convictions on one (1) count of sodomy first degree (J.C .), two (2) counts of use

of a minor in a sexual performance, criminal abuse in the first degree, rape in

the second degree, and sodomy in the first degree (forcible compulsion) . The

trial judge shall enter an amended sentencing order regarding those

convictions which have been affirmed . As to the sodomy counts which have

been reversed, this matter is remanded to the trial court for further

proceedings consistent with this Opinion .

    Minton, C .J . ; Abramson, Noble, Schroder, Scott and Venters, JJ., concur.

Cunningham, J., dissents by separate opinion .

   CUNNINGHAM, JUSTICE, DISSENTING : I respectfully dissent from the

majority opinion . I fear that it stretches the meaning of palpable error to the

breaking point. We have condemned the generic identical type of instructions

given in this case and have even reversed when the error was preserved . Miller
                                        15
 v. Commonwealth , 77 S .W.3d 566 (Ky. 2002) ; Harp v. Commonwealth, 266

 S .W.3d 813 (Ky. 2008).

       However, the majority opinion today takes this practice to a different

level in holding that it is palpable error. Under RCr 10.26, an unpreserved

error may be reviewed on appeal if the error is "palpable" and "affects the

substantial rights of a party." A palpable error "must involve prejudice more

egregious than that occurring in reversible error." Brewer v. Commonwealth,

206 S .W.3d 343, 349 (Ky. 2006) . Generally, a palpable error affects the

substantial rights of a party only if "it is more likely than ordinary error to have

affected the judgment ." Ernst v. Commonwealth, 160 S .W.3d 744, 762 (Ky.

2005) . An unpreserved error that is both palpable and prejudicial still does not

justify relief unless the reviewing court further determines that it has resulted

in a manifest injustice ; in other words, unless the error so seriously affected

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

or jurisprudentially intolerable ." Martin v. Commonwealth, 207 S .W.3d 1, 4

(Ky. 2006) .

      We should not forget the reason for our reluctance to brand unpreserved

trial objections as palpable. Our traditional respect and deference to the trial

judges on site behooves us to forebear from imposing our corrections upon

judges who were not given opportunity to rule upon them.

      Guided by that notion, I do not find the error in the improper giving of

identical jury instructions under the circumstances in this case as being

"shocking" or "egregious" or "resulting in manifest injustice ." Nor do I believe


                                        16
that it rises to the unacceptable level of error to which we have applied the

term "palpable" in our previous case law.

       Over the last twenty years, we have interpreted palpable error to be

considerably more serious than the irregularity present in this case . Brown v.

Commonwealth, 763 S .W.2d 128 (Ky. 1 989) (cross-examination of defendant

concerning prior armed robbery charge for which he had been tried and

acquitted) ; Chumbler v. Commonwealth, 905 S.W .2d 488 (Ky. 1995) (admission

of unreliable statistical calculations allegedly tying defendant to a cigarette butt

found at murder scene) ; Barnett v. Commonwealth, 828 S.W .2d 361 (Ky . 1992)

(refusal to provide a hearing before excluding sexual activity of complaining

witness substantially rebutting testimony of examining physician who

expressed findings of chronic sexual contact and identified defendant as guilty

party) ; Perdue v. Commonwealth, 916 S .W.2d 148 (Ky. 1995) (admission of

parole eligibility in a death penalty case) ; Dillingham v. Commonwealth , 995

S .W .2d 377 (Ky. 1999) (introduction at sentencing phase of contents of

National Crime Information Center (NCIC) report) ; McKinney v . Commonwealth,

60 S .W.3d 499, 504 (Ky. 2001) (exclusion of valuable expert psychological

evidence on behalf of defendant to rebut damning evidence by the

Commonwealth) ; Robinson v . Commonwealth , 181 S.W.3d 30 (Ky. 2005)

(presentation of incorrect or false testimony during the sentencing phase in a

drug prosecution) ; and Commonwealth v. Davidson , 277 S.W.3d 232, 235 (Ky.

2009) (instructing jury on second-degree assault based upon the theory that

defendant's fists were dangerous instruments, the reversal of which was based

ultimately on other grounds) .
                                        17
       In Bell v. Commonwealth, 245 S .W .3d 738 (Ky . 2008), we held harmless

error if the defendant has been found guilty under all of the identical

instructions . That case was overruled by Harp v . Commonwealth , id. , where

we held that the prosecutor's argument could not serve as proof distinguishing

each of the counts . In Harp, we held such instructions were error, but not

harmless . Here, we expand the holding in Harp by saying that such

instructions are palpable error. For the same reason stated in Bell that such

error was harmless, I now state such error, in cases like this, is not palpable .

       In Bell, we said : "Because the jury ultimately found Bell guilty of all five

counts of sexual abuse, it can be rationally and fairly deduced that each juror

believed Bell was guilty of the five distinct incidents identified by the

Commonwealth ." 245 S.W.3d at 744 . The Court there surmised, and it is

precisely my point here, that the dangers of identical instructions were not

realized. If a jury finds the defendant guilty under some of the identical

instructions, but not others, we are not assured of a unanimous verdict on any

of them, nor exactly which incident they believed occurred. In such cases, the

defendant is not only denied a unanimous verdict, but is also stripped of any

realistic basis for appellate review of the conviction.

      This was the case in Frederick Miller v. Commonwealth, No. 2007-SC-

000048-TG, just decided last month and in which I concurred.

      But that is not the case here . Campbell was unanimously found guilty of

all of the identical instructions beyond a reasonable doubt. There is no danger

lurking of a verdict to any count which was not unanimous .


                                         18
      It is difficult for me to understand how, with the sufficiency of the

evidence as to all of these counts, the giving of identical instructions was either

manifest injustice, or how the outcome of the trial would have been different

had the instructions been more particularized .

      Palpable error should be shocking, jumping from the pages and

screaming out for relief. I fail to see it here. Applying palpable error to the

facts of this case waters down the significance of that term and some day soon

will return to haunt us .
COUNSEL FOR APPELLANT:

Shelly R. Fears
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-1133

COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

James Coleman Shackelford
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
