         IMPORTANT NOTICE
    NOT TO BE PUBLISH ED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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.
                                                      RENDERED : APRIL 23, 2009
                                                                         IS

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                                2007-SC-000358-MR


 GORDON STRANGE



                   ON APPEAL FROM POWELL CIRCUIT COURT
V.                 HONORABLE FRANK A. FLETCHER, JUDGE
                              NO. 06-CR-00016



COMMONWEALTH OF KENTUCKY                                                APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING


       This is an appeal from a judgment in which Appellant was convicted of'

first-degree assault and second-degree arson for severely burning his

stepdaughter and burning his trailer down . Appellant assigns as error: the

refusal to instruct on second-degree assault; allowing the prosecutor to

question the victim's characterization of the crime as an "accident" ; allowing an

arson expert to testify beyond his expertise ; admission of a computer print-out

of Appellant's prior convictions without an authenticating witness ; and reusing

to inform the jury of the 85% serve-out rule for a violent offender. We reject, the

first four claims of error and adjudge that the error in not allowing the jury to

hear the "violent offender" minimum parole eligibility information did not rise

to the level of palpable error in this case. Hence, we affirm .
        Appellant, Gordon Strange, was Michelle Thorpe's stepfather for ten

 years, until she was around 16 years of age when her mother and Strange

 divorced . In February of 2006, Thorpe was living on and off with Strange in his

 trailer. In the early morning hours of February 7, 2006, Thorpe was making a

 bed on Strange's couch when she turned around and saw Strange dousing

 kerosene all around the kerosene heater . Strange then threw kerosene all over

 Thorpe, from the bottom of her legs to the top of her waist. According to

 Thorpe's testimony, she asked Strange if he was going to burn her and he said

 yes . Strange then jumped on Thorpe, held her down on the couch and lit the

 kerosene with a lighter. Thorpe's body was immediately consumed by flames

 and Strange fled the trailer.

       Thorpe sustained burns to over 80% of her body, including her legs,

trunk, chest, neck and face. She was in a coma for months and suffered

painful skin grafts and debriding. Thorpe was in the hospital for approximately

five months and required in-patient physical therapy for another four months

to continue treating the burns and learn how to walk again. At the time of

trial, Thorpe's elbows were still locked and she could not cook, dress herself or

completely sit down .

       On March 1, 2006, Strange was indicted on charges of first-degree

assault and first-degree arson . Pursuant to a jury trial on March 26-28, 2007,

Strange was found guilty of first-degree assault and second-degree arson. The

jury recommended a sentence of 20 years for the assault and 10 years for the
 arson, with five years to run concurrently, for a total of 25 years. From the

judgment sentencing Strange according to the recommendations, Strange now

 appeals .

             SECOND-DEGREE (WANTON) ASSAULT INSTRUCTION

       Strange tendered instructions in the case which included a second-

degree assault instruction identical to the instruction ultimately submitted to

the jury . The instruction was based on KRS 508.020(a), for "intentionally

caus[ing] serious physical injury to another person." The only assault

instruction tendered by Strange with a wanton mental state was the fourth-

degree assault instruction . And during the discussion on the instructions,

defense counsel did not argue for a second-degree assault instruction based on

a wanton mental state (KRS 508 .020(c)) . However, the next day, right before

the instructions were to be read to the jury, defense counsel stated that she

thought, from the previous day's discussion, there was going to be a second-

degree assault instruction based on a wanton mental state (KRS 508 .020(c))

instead of an intentional mental state (KRS 508.020(a)) . The court denied the

inclusion of a second-degree assault instruction under KRS 508.020(c),

concluding that "the instruction as given is consistent with the evidence."

      No assault instruction was ultimately given with a wanton mental state,

although the jury was instructed on third-degree arson which required a

wanton mental state with respect to the damage to or destruction of the trailer.

The jury was instructed on first and second-degree assault, both based on an
 intentional mental state . The jury found Strange guilty of first-degree assault,

 finding that he intentionally caused serious physical injury to Thorpe by setting

her on fire and that the fire was a dangerous instrument. KRS 508.010(a) .

Strange now argues that the trial court erred in failing to instruct on wanton

second-degree assault.

       In the police interviews with Strange, which were admitted into evidence,

Strange told the detective that he poured or splashed kerosene on the bottom

of Thorpe's pajamas because he was upset that Thorpe had been out that night

with "a bunch of crackheads." Strange insisted that he was just joking around

though, stating. "I knew it might catch on fire, but, God damn, I could smack it

right back out with my hands, you know." At one point in the interview,

Strange admitted that he had ignited the kerosene on Thorpe with a lighter.

Strange told the detective, "Seem like we's getting ready to light a cigarette, and

then I just said, why, hell, I'll just = you know, touch it to her pants when I was

lighting a cigarette, and by God, it just flew." At another point in the same

interview, Strange stated that he could not remember whether he lit her with a

lighter or she got too close to the kerosene heater and ignited.

      At trial, Strange testified that he splashed kerosene on Thorpe to make

her be quiet because she was "fussing." He stated that he did not mean for her

to get burned like she got burned. Strange denied having a lighter the night of

the fire and testified that if he pushed her into the heater, he did not mean to.

      Subsection (c) of KRS 508.020 provides that "[a] person is guilty of
 assault in the second degree when . . . [h)e wantonly causes serious physical

injury to another person by means of a deadly weapon or a dangerous

instrument ." "Wantonly" is defined in KRS 501 .020(3) as follows:

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

KRS 501 .020(1) provides that "A person acts intentionally with respect to a

result or to conduct described by a statute defining an offense when his

conscious objective is to cause that result or to engage in that conduct."

      It is the duty of the trial court to instruct the jury on every theory of the

case deducible from the evidence. Fredline v. Commonwealth, 241 S.W.3d 793,

797 (Ky. 2007) (citing Manning v. Commonwealth , 23 S.W.3d 610, 614 (Ky.

2000)) ; RCr 9.54(1) . While that duty includes instructions on any lesser

included offenses which are supported by the evidence, that duty does not

require an instruction on a theory with no evidentiary foundation. Houston v.

Commonwealth , 975 S.W.2d 925, 929 (Ky. 1998) (citing Barbour v.

Commonwealth , 824 S.W.2d 861, 863 (Ky. 1992), overruled on other rounds

by McGinnis v. Commonwealth, 875 S.W.2d 518 (Ky. 1994)) . "An instruction
 on a lesser-included offense is required only if, considering the totality of the

evidence, the jury could have a reasonable doubt as to the defendant's guilt of

the greater offense, and yet believe beyond a reasonable doubt that he is guilty

of the lesser offense." Baker v. Commonwealth, 103 S .W.3d 90, 94 (Ky. 2003)

(citing Clifford v. Commonwealth, 7 S.W.3d 371, 377-78 (Ky. 1999)) . A trial

court's rulings on instructions are reviewed under an abuse of discretion

standard . Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006) (citing

Johnson v. Commonwealth, 134 S.W.3d 563, 569-70 (Ky. 2004)) .

      Strange argues that given his testimony that he just was just joking

around with Thorpe when he poured or splashed the kerosene on her, he was

entitled to a second-degree assault instruction based on a wanton state of

mind. Notwithstanding Strange's assertion that he was just joking around

when he poured kerosene on Thorpe, the evidence was undisputed that he

intended to pour kerosene on her for the purpose of igniting it. Strange was

not simply aware of and consciously disregarded a substantial risk that

Thorpe's body would catch on fire when he poured kerosene on her and ignited

her with a lighter or heater . According to Strange's own testimony, his

conscious objective was to pour kerosene on Thorpe and light the kerosene for

the purpose of setting her body on fire and burning her. Accordingly, the trial

court did not abuse its discretion in denying Strange's motion for a second-

degree wanton assault instruction.
     PROSECUTOR'S ASSERTION OF PERSONAL KNOWLEDGE OF FACTS

           During the Commonwealth's direct examination of Thorpe, the following

 exchange occurred:

                Commonwealth : At that date or on that date, in
                February of 2006, where were you living?

                Thorpe : At the time of the accident?

                Commonwealth : Well, you call it an accident.
                Was it an accident?

                Thorpe : Well, no.

                Commonwealth : Okay. Let's don't use that word if it
                wasn't, because that's not what it was.

                Thorpe : Okay. I'm sorry.

       At that point, defense counsel objected. The trial court overruled the

objection, and the examination of Thorpe continued.

       Strange argues that by telling the witness to not further characterize the

incident as an accident, the prosecutor improperly inserted his knowledge of

the facts into the record as decried in Berger v. United States , 295 U .S. 78, 84

(1935) .

       It is well established that a trial court's evidentiary rulings are reviewed

under an abuse of discretion standard . Simpson v. Commonwealth, 889

S .W.2d 781, 783 (Ky. 1994) . We do not view the prosecutor's questioning of

Thorpe to be an assertion of personal knowledge. Given the charges against

Strange, the Commonwealth's theory of the case was obviously that the fire
 was not an accident, and the Commonwealth had already declared this was

 their theory in their opening statement. In light of Thorpe's testimony as to

 how the fire started, the prosecutor simply asked Thorpe whether it was an

 accident to clarify her testimony. The trial court. did not abuse its discretion in

 allowing this line of questioning.

                      TESTIMONY OF DETECTIVE BARNES

       Kentucky State Police ("KSP") Detective Shane Barnes, a certified fire

 investigator for the KSP, was called as an expert witness by the

 Commonwealth . He testified to the results of his investigation of the fire at

 Strange's trailer and his conclusion that the fire was not accidental. On direct

 examination, Barnes was also questioned extensively about the kerosene

heater found at the scene, without any objection by the defense. Barnes

testified that the type of kerosene heater found at the scene had a safety

shutoff that extinguishes the flame if it is tipped over or kicked hard . Barnes

also testified that the heater had a wick enclosed by a glass glove and that the

entire combustion chamber had a metal grill over it. In his final question on

direct, the prosecutor asked Barnes, "Okay. Okay. So you don't have an

exposed flame?" Barnes replied, "No, sir."

      On cross-examination, defense counsel established that Barnes'

testimony about the kerosene heater was based on his own personal experience

with kerosene heaters. Defense counsel then proceeded to ask Barnes many of

the same type of questions about another radiant oil heater found at the scene
that the Commonwealth had asked about the kerosene heater . Defense

counsel also elicited the following testimony from Barnes :

            Defense : Okay. So you've ruled out that an accidental
            cause of the fire could have been from hitting the
            lighted kerosene simply because your personal
            experience with kerosene heaters told you that that
            didn't ever happen? Is that right?

            Barnes : Can you repeat that?

            Defense : Okay. You said it was not accidental .
            However, there was an open flame in that house there
            that night . Was there not? Or some type of flame in
            the house that night?

            Barnes: Could have been if the - if the heater was on.

            Defense : And the fuse was lit and there was an open
            flame in the house, correct?

            Barnes : Could be.

           Defense : And certainly an open flame with vapors of
           kerosene or diesel oil or anything else could cause a
           fire. Could it not?

           Barnes: Well, with that type of heater, what you're
           saying is there is a combustion chamber where the
           flame is housed. Yes, there is an open flame, but it's
           inside the glass housing.

           Defense: Assuming it's all working properly.

           Barnes : Yes, ma'am.

           Defense: Okay, we don't know whether it was working
           properly or not?

           Barnes : No, ma'am.
       On re-direct, the Commonwealth asked Barnes, based on his experience

 and knowledge of this type of kerosene heater, if the grill on the front would get

 hot enough to burn a person if he touched it while the heater was on. Defense

 counsel objected on the grounds that Barnes' knowledge was "limited to his

 own personal experience with one kerosene heater ." Defense counsel again

 objected when the Commonwealth asked Barnes where an open flame would

 have been on the kerosene heater . The court overruled the objection,

 reasoning that the witness had already testified about how the kerosene heater

was made and how it worked.

       Strange now complains on appeal that the trial court erred in allowing

Barnes to give his opinion regarding the safety features of kerosene heaters in

violation of Kumho Tire Co., Ltd. v. Carmichael, 526 U .S . 137 (1999) (holding

that trial courts should consider the specific factors in Daubert v. Merrell Dow

Pharmaceuticals, Inc . , 509 U.S. 579 (1993), where they are reasonable

measures of the reliability of expert testimony) . However, as noted above,

defense made no objection to Barnes' qualifications or the reliability of his

testimony about kerosene heaters prior to trial or at anytime during the

Commonwealth's direct examination of Barnes. And the defense itself elicited

testimony from Barnes on cross-examination about how the kerosene heater

and the other radiant oil heater worked, including testimony about the grill on

the front and whether there was an open flame on the kerosene heater . It was

not until re-direct that Strange expressed any objection to Barnes' testimony.
        KRE 103(a)(1) requires a timely objection to preserve an issue regarding

 the admission of evidence . Just as in Commonwealth v. Petrey , 945 S.W.2d

 417, 419 (Ky. 1997), Strange waived his right to object in the present case by

 failing to interpose a timely objection to Barnes' qualifications or the reliability

 of his expert testimony. Hence, the trial court did not abuse its discretion

 when it overruled Strange's objections .

      COMPUTER PRINT-OUTS OF DEFENDANT'S PRIOR CONVICTIONS

       During the penalty phase, pursuant to KRS 532 .055, the trial court

 allowed the Commonwealth to introduce computer print-outs of Strange's prior

convictions in Kentucky for assault in the fourth degree, violation of an

emergency protective order, DUI, and alcohol intoxication, all from 1994. The

print-outs of the convictions were not offered through an authenticating

witness, but were all certified by the Powell Circuit Court Clerk. The defense

objected, arguing that the computer print-outs were not properly

authenticated. The trial court overruled the objection on grounds that they

were certified records of the best evidence that could be obtained of the 1994

convictions .

      On appeal, Strange argues that under Robinson v. Commonwealth, 926

S.W.2d 853 (Ky. 1996), the computer print-outs of the prior convictions were

not admissible without a witness who could testify to their authenticity.

However, Robinson involved print-outs of out-of-state convictions, which were

not certified . Id. at 854. In the instant case, KRS 422.040 is not implicated
 because the convictions were not from another state or a federal court.

       KRE 902(2) and (4) allow domestic public documents and official records

 to be self-authenticating if they are certified . See Merriweather v.

 Commonwealth, 99 S.W.3d 448, 452-53 (Ky. 2003) . The present case is more

 akin to Hall v. Commonwealth, 817 S.W.2d 228, 230 (Ky. 1991), overruled on

other rounds by Commonwealth v. Ramsey, 920 S .W.2d 526, 527 (Ky . 1996),

wherein this Court held that a certified Kentucky State Police computer print-

out of the defendant's prior convictions was admissible as proof of defendant's

prior convictions for purposes of KRS 532 .055, where there was no dispute as

to the existence of the convictions or the content of the writing. Like Hall,

Strange does not dispute the existence or the accuracy of the prior convictions

at issue. Accordingly, the trial court did err not in allowing the evidence of the

prior convictions to be admitted for truth-in-sentencing purposes .

    PAROLE ELIGIBILITY UNDER ERS 439.3401 DURING SENTENCING

      During the defense's closing argument in the penalty phase, defense

counsel attempted to inform the jury that because the offenses were violent

offenses pursuant to KRS 439 .3401, Strange would have to serve 85% of his

sentence before he would be eligible for parole. Before the defense could finish

so advising the jury, the Commonwealth objected, arguing that this information

was not admissible . The court agreed and defense counsel voluntarily

withdrew that portion of its argument. The court then granted the

Commonwealth's motion for an admonishment and admonished the jury "to
 disregard the last statement of defense counsel ."

        Strange argues that the trial court erred in refusing to allow the defense

 to inform the jury that as a "violent offender" under KRS 439.3401(3), he would

 be required to serve 85% of his sentence before he would be eligible for parole .

 KRS 532 .055(a)(1) expressly allows evidence of the defendant's minimum

 parole eligibility to be adduced during the sentencing hearing. In Boone v.

 Commonwealth , 780 S.W.2d 615, 616-17 (Ky. 1989), we adjudged that that it

 was error for the trial court to refuse to allow the defense to put, on evidence of

 the defendant's minimum parole eligibility under the "violent offender"

 provisions. of KRS 439.3401 . We held, "If Truth-in-Sentencing' is the objective

sought by KRS 532 .055, then either the defendant or the Commonwealth

should be permitted to introduce evidence of minimum parole eligibility." Id. at

616. Thus, it was error for the trial court to refuse to allow the defense to put

this information before the jury in the case at bar.

       Our review of the error in this case, however, is confined to a palpable

error standard because defense counsel voluntarily withdrew its argument,

appearing to agree with the court's ruling and thus waiving the error. See

Ropers v. Commonwealth , 992 S.W.2d 183, 187 (Ky. 1999) . Under RCr 10.26,

"[a] palpable error which affects the substantial rights of a party may be

considered . . . by an appellate court on appeal, even though insufficiently raised

or preserved for review, and appropriate relief may be granted upon a

determination that manifest injustice has resulted from the error." With
 palpable error review, an unpreserved error requires reversal only "if a manifest

 injustice has resulted from the error," which means there "is [a] probability of a

 different result or [the] error [is] so fundamental as to threaten a defendant's

 entitlement to due process of law." Martin v. Commonwealth, 207 S . W.3d 1, 3

 (Ky. 2006) .

            In this case, there was no minimum parole eligibility evidence put

before the jury. The jury recommended a sentence of 20 years for the first-

degree assault and 10 years for the second-degree arson, five years to run

concurrently and five years to run consecutively, for a total of 25 years. The

jury could have sentenced Strange to a maximum of 40 years. Given the

heinous nature of the crime, we cannot say that there was a probability of a

different result had the jury been aware of the 85% serve-out requirement in

KRS 439 .3401(3) . Nor can we say that the error was so fundamental that it

threatened Strange's entitlement to due process . Accordingly, there was no

palpable error.

      For the reasons stated above, the judgment of the Powell Circuit Court is

affirmed.

      All sitting. All concur.
COUNSEL FOR APPELLANT:

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


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

Todd Dryden Ferguson
Assistant Attorney General
Office of Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
