        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   NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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.
                                                             MAY 24, 2008
                                              RENDERED : JANUARY
                                                WITHDRAWN :      22, 2008
                                                  REISSUED : MAY 22, 2008
                                                    NOT TO BE PUBLISHED


         ~sixpreutE Cuixrf of

        2005-SC-000782-MR
       it                                       -1          n~~ ra 0 t      ~"~~ C--
 RUBEN RIOS SAUNAS                                             APPELLANT


               ON APPEAL FROM FAYETTE CIRCUIT COURT
 V.               HONORABLE GARY D. PAYNE, JUDGE
                           98-CR-001 270


 COMMONWEALTH OF KENTUCKY                                        APPELLEE

                                 AND

                          2006-SC-000482-TG

RUBEN RIOS SAUNAS                                              APPELLANT


              ON TRANSFER FROM THE COURT OF APPEALS
V.                         2006-CA-000980
                 LYON CIRCUIT COURT NO. 06-CI-000053


TOM SIMPSON                                                     APPELLEE

                                AND

                          2006-SC-000483-TG


RUBEN RIOS SAUNAS                                             APPELLANT


              ON TRANSFER FROM THE COURT OF APPEALS
V.                         2006-CA-000732
               FAYETTE CIRCUIT COURT NO. 03-CR-0001296


COMMONWEALTH OF KENTUCKY                                         APPELLEE
                           MEMORANDUM OPINION OF THE COURT

                                              AFFIRMING

         Appellant Ruben Rios Salinas was indicted in 1998 for Capital murder, Capital

 kidnapping, and being a persistent felony offender (PFO) in the second degree . A jury

 convicted Appellant of the murder and kidnapping charges . As Appellant had been

 convicted of two capital offenses, which were incapable of being enhanced, the

 Commonwealth moved at the sentencing phase of trial to dismiss the PFO charge

without prejudice . The trial court orally sustained the motion but did not address

whether it was with or without prejudice . The court's written order stated that the PFO

count was dismissed upon motion of the Commonwealth . The trial court sentenced

Appellant, in accordance with the jury's recommendation, to life in prison without the

possibility of parole .

         On appeal from that judgment, this Court reversed the conviction based on the

admission of improper hearsay evidence as well as an erroneous instruction on

aggravating circumstances .' We remanded the case to the Fayette Circuit Court. Upon

retrial, Appellant was convicted of manslaughter in the first degree, attempted theft by

extortion, and of being a persistent felony offender (PFO) in the second degree. The

PFO conviction had the effect of enhancing Appellant's twenty-year sentence for

manslaughter in the first degree to a life sentence.

        In the instant appeal, Appellant first challenges his PFO conviction . Appellant

specifically claims that when a charged count is dismissed, the Commonwealth should

not be able to proceed on that count unless the dismissal is based on one of the


 Salinas v. Commonwealth, 84 S.W.3d 913 (Ky. 2002) .
2 For his conviction for attempted theft by extortion, Appellant was sentenced to twelve months to be
served concurrently with the life sentence.
 grounds identified in CR 41 .02(3), 3 or the court makes a notation on the written, final

 order of dismissal indicating that the Commonwealth may re-file the dismissed charge .

 According to Appellant, unless one of the exceptions to the rule applies, there must be a

 notation that dismissal is without prejudice or the party must obtain relief on appeal s

 because CR 41 .02(3) provides that unless these conditions are met, the matter is "an

 adjudication upon the merits ." Appellant also argues that since the dismissal of the

 PFO count was not based on any of the grounds in CR 41 .02(3), and as there was no

 notation in the judgment regarding whether retrial on that count was permissible, the

 order of dismissal was an adjudication on the merits ; and that this precludes his

 conviction of the PFO charge on retrial on double jeopardy grounds .

         We disagree . CR 41 .02 applies to involuntary dismissals. In this case, the PFO

charge was voluntarily dismissed, upon motion by the Commonwealth, on grounds that

Appellant's sentence was incapable of being enhanced. The applicable rule, therefore,

is CR 41 .01, which governs voluntary dismissals . CR 41 .01(2) provides, in pertinent

part, "[u]nless otherwise specified in the order, a dismissal under this section is without

prejudice ." CR 41 .01 is applicable to voluntary dismissals in criminal cases. Because

the trial court's written order did not state otherwise, per CR 41 .01 the dismissal of the

PFO charge was without prejudice .


3 CR 41 .02(3) provides in part: "Unless the court in its order for dismissal otherwise specifies, a dismissal
under this Rule . . . other than a dismissal for lack of jurisdiction, for improper venue . . . or for failure to
join a party under Rule 19, operates as an adjudication upon the merits ." The civil rule regarding
dismissals is applicable to this criminal action pursuant to RCr 13.04 .
4 Appellant reports that the PFO charge was "refiled" in a new indictment, 03-CR-1296. This indictment
does not appear in the trial court record, however . Additionally, while sometimes this indictment number
was included on court documents in addition to the old number, 98-CR-1270, the trial court's judgment of
conviction following retrial cites only the number corresponding to the initial indictment. We conclude
from the state of the record that the case was retried under the original indictment. The question of which
indictment was used does not affect our determination of the outcome of the issue .
5 See Commonwealth v. Hicks, 869 S.W.2d 35, 38 (Ky. 1994).
6 See Commonwealth v. Berry, 184 S.W.3d 63, 65 (Ky. 2005).
                                                3
        Further, Appellant's conviction of the PFO charge on retrial was not barred by

 double jeopardy . In White v. Commonwealth,' we recognized :

               Conviction as a Persistent Felony Offender is not a charge of
               an independent criminal offense but rather a particular
               criminal status . Consequently double jeopardy does not
               attach . Persistent Felony Offender proceedings involve the
               status of the offender and the length of the punishment, not
               a separate or independent criminal offense. Kentucky
               Constitution Section 13 and KRS 505.040(1)(a) both relate
               to an offense before double jeopardy is activated .

 Accordingly, we conclude that Appellant's conviction of being a PFO in the second

degree was proper.

        Appellant next claims that the trial court committed reversible error by admitting

photographs of knives that were found in a search of his home . He asserts that the

knives were not relevant because they were unconnected to the charged crimes. The

victim, Aubrey Nuckolls, died from gunshot wounds . The Commonwealth argued for

admission of the photographs based on the medical examiner's testimony that the

victim had cuts on his body, probably inflicted post-mortem . The Commonwealth

argued that the presence of knives in the house was thus relevant . Appellant observed

that the knives were not forensically tested and that there was no offer of proof that the

knives corresponded to the wounds . The trial court allowed admission of the

photographs and specifically ruled that the photographs did not appear to be unduly

prejudicial . The photographs of the knives were admitted through the testimony of a

detective, without any commentary on their significance .

       A trial court's rulings regarding the relevance of evidence will not be disturbed

absent an abuse of discretion .$ The test for abuse of discretion is whether the trial


7 770 S.W.2d 222, 224 (Ky. 1989).
8 Love v. Commonwealth, 55 S.W.3d 816 (Ky. 2001).
                                                4
 judge's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal

     principles ."9

            Appellant cites the general rule that "[w]eapons which have no relation to the

 crime are inadmissible ."' ° A weapon may be admitted into evidence "based upon

 testimony that the weapon was . . . found at the scene of the offense and was capable

 of inflicting the type of injury sustained by the victim."' 1 The admission of tangible

 objects as evidence requires establishing a link to the evidence by time, place and

 circumstance to the matter being litigated . The proof need not positively show the

 connection ; but there must be proof rendering the inference reasonable or probable

 from its nearness in time and place or other circumstances, 13

            Appellant claims lack of relevance and observes that he was not charged with a

 crime involving the knives . The Commonwealth's arguments that the knives could have

been used to threaten or cut the victim in the course of a kidnapping amounts to mere

speculation not supported by any evidence . The cause of the cuts to the victim's legs

was not established . The medical examiner could not say definitively whether the

wounds occurred before death or post-mortem . The knives were not tested . The

presence of the knives had to meet the test of relevancy -- some tendency to make the

existence of any fact of consequence to the determination of the action more or less

probable than without the evidence under KRE 401 . The knives' relevance to a fact of

consequence in this case was not shown.

9 Woodward v. Commonwealth , 147 S.W.3d 63 (Ky. 2004) (quoting Goodyear Tire & Rubber Co. v.
Thompson , 11 S .W.3d 575, 581 (Ky. 2000)) .
1° Maior v. Commonwealth , 177 S.W.3d 700, 710 (Ky. 2006) .
11 Id . ;
          accord Barth v. Commonwealth, 80 S.W.3d 390 (Ky. 2001).
12
  Hicks v. Commonwealth 805 S.W.2d 144,150-151 (Ky.App. 1991); R. Lawson, The Kentucky
Evidence Law Handbook, § 11 .00, p. 590 (3rd ed. 1993); Barth, 80 S.W.3d at 402 .
13
     Higgins v. Commonwealth , 142 Ky. 647, 134 S.W. 1135 (1911), cited in Barth, 80 S.W.3d at 402 .

                                                      5
         Nevertheless, we view the admission of the photographs as harmless error.

 Appellant complains on appeal that the Commonwealth used the knives to infer to the

 jury that Appellant tortured the victim prior to his death . Appellant argues this was

 highly prejudicial and impeded his defense of self-defense without any evidentiary

 basis. However, the Commonwealth did not speculate on the use of the knives .

 Further, the Commonwealth did not address any issue regarding the knives in its

 closing argument. Appellant argued, in fact, in his closing that the jury should avoid any

 inclination to think that the victim was restrained and injured with the knives, and that

the lack of testing demonstrated that the Commonwealth never considered them

significant or incriminating to Appellant . We do not agree that the Commonwealth used

the photographs to inject prejudicial inferences into the trial, and conclude that the

erroneous admission of the photographs of knives was harmless error. There is no

reasonable possibility that the photographs of the knives contributed to the conviction .

        Appellant next claims that the trial court committed reversible error by instructing

the jury on the charge of first-degree manslaughter because it was unsupported by the

evidence . This issue was not raised as such at trial. However, Appellant, acting as co

counsel, objected to instructing the jury on that charge, because he did not want the jury

to convict him of something as a compromise. But Appellant's trial counsel argued that

Appellant should receive the same instructions as were given at the first trial, including

the manslaughter in the first degree instruction and definition of extreme emotional

disturbance . Further, defense counsel argued that Appellant was "absolutely entitled" to

an instruction on the manslaughter in the first degree alternative which required an



14
   Morgan v. Commonwealth , 189 S.W.3d 99, 108 n.27 (Ky. 2006), overruled on other rog unds bv Shane
v. Commonwealth , 243 SW3d 336 (Ky. 2007).
     intent to inflict serious physical injury . 15 The court determined that the jury should be

     given all the instructions as alternatives . Because the instruction was given at the

     insistence of defense counsel, we will not review the claim of error. We do not look with

 flavor on an accused arguing against an instruction which he sought at trial. 16 A

 defendant may not pursue one theory at the trial level and another one on appeal . 17 We

 have long maintained that objections must be made to the instructions in order to obtain

 review. '8 Therefore, we decline further review of Appellant's arguments on appeal

 regarding the propriety of the manslaughter in the first degree instruction .

           Appellant's next issue is also unpreserved, but he requests palpable error review

 under RCr 10.26. Appellant claims that his conviction for attempted theft by extortion

 must be reversed because this offense is not a lesser included offense of kidnapping . A

 lesser included offense is one which contains the same or fewer elements than the

 primary offense. KRS 505.020(2) provides in part: "A defendant may be convicted of an

offense that is included in any offense with which he is formally charged . An offense is

so included when [it is] established by proof of the same or less than all the facts

required to establish the commission of the offense charged ."

           We agree that attempted theft by extortion is not a lesser included offense of

kidnapping . KRS 509 .040(1)(a) provides : "A person is guilty of kidnapping when he

unlawfully restrains another person and when his intent is . . . to hold him for ransom or

reward." KRS 514 .080 provides : "A person is guilty of theft by extortion when he

intentionally obtains property of another by threatening to inflict bodily injury on anyone


15
     The Commonwealth stated that it did not take a position on these instructions .
16
     Gall v. Commonwealth , 607 S.W.2d 97 (Ky. 1980).
17
     Commonwealth v. Duke, 750 S.W.2d 432 (Ky. 1988).
18 RCr 9.42 ; Commonwealth v. Thurman, 691 S.W.2d 213, 216 (Ky. 1985).
                                                       7
  or commit any other criminal offense ." The offense of kidnapping thus has separate

  elements independent from the offense of attempted theft by extortion. If the lesser

  offense "requires proof of a fact not required to prove the greater offense, then the

  lesser offense is not included in the greater offense, but is simply a separate, uncharged

 offense." 19

            The question before us now is whether Appellant's conviction for the uncharged

 offense in the absence of an objection was palpable error. This charge came to be

 instructed as well simply because it had been given at the first trial . Appellant had

 maintained that he was innocent of kidnapping because he had not restrained the victim

 for ransom but only tried to get money later as a means to deflect attention from himself

 concerning the death after it happened. Appellant did not argue in closing argument in

 the retrial, however, that he should be convicted of the lesser offense . However, he

 also did not object at trial to the giving of this lesser, uncharged offense .

           In this instance, as before, we decline review of the instruction since Appellant

through counsel requested that the jury be instructed on the attempted theft by extortion

count as part of the instructions from his previous trial. Appellant cannot pursue a

different theory on appeal .2° Because there was no objection to the attempted theft by

extortion instruction below, we will not review its propriety on appeal.

           Appellant also has pending claims arising from his March 15, 2006, petition for

writ of habeas corpus . He claims that his retrial for murder violated the double jeopardy

clause, and that the evidence does not support a conviction .

           On April 11, 2006, the Lyon Circuit Court denied the petition and held that a writ

's Colwell v. Commonwealth , 37 S.W.3d
                                       721, 726 (Ky. 2000).
2°
     Duke, 750 S.W.2d at 433 .
21
     Thurman , 691 S.W.2d at 216 .
     of habeas corpus was an inappropriate remedy for these claims. The circuit court

     recognized, "[Appellant's] direct appeal, which remains pending before the Kentucky

 Supreme Court, and collateral attacks are adequate remedies to address the claims he

 now presents ." Appellant appealed the denial to the Kentucky Court of Appeals. The

 claims were transferred to this Court (2006-SC-482), and consolidated with the direct

 appeal (2006-SC-782) .

            We affirm the trial court's order. Habeas corpus relief is not available to

 Appellant on the issues presented in his habeas petition. Rather than allowing habeas

 petitions to become substitutes for direct appeals, habeas corpus must remain "an

 extraordinary remedy only available under limited circumstances ."22 The Appellant's

 double jeopardy and sufficiency of the evidence claims were required to be pursued

 through the pending direct appeal. A petition for habeas corpus is not to be granted if

 the petitioner has available other adequate remedies.23 If an error is reviewable on

 direct appeal or by way of an RCr 11 .42 motion, habeas corpus relief will not be

granted .24 Appellant failed to show that he was without an appropriate remedy, and so

the trial court's dismissal was correct.

           Finally, Appellant also brought a motion following his conviction styled a "Writ of

Right in Supersedeas, Arresting Judgment, Quashing Indictment, with Resentencing

Pursuant to Jury Verdict" which was treated as having been brought pursuant to CR

60.02. In the motion, Appellant alleged that the separate indictment charging him as a

PFO was akin to a bill of attainder rendering the judgment void ab initio . That motion

was denied, and Appellant appealed to the Court of Appeals, which transferred the case

22   M .M . v. Williams , 113 S.W.3d 82,84 (Ky. 2003).
23   S prinkles v. Downey, 195 S.W.2d 760 (Ky. 1946).
24
     Lear v. Commonwealth, 884 S.W.2d 657, 660 (Ky. 1994); Gray v. Wingo, 423 S.W.2d 517 (Ky. 1968).
                                                         9
 to this court (2006-SC-483) and consolidated it with the foregoing appeals .

           The claims Appellant raises by way of CR 60.02, regarding his indictment for

  PFO, must fail for reasons similar to those for denial of his habeas corpus claims . CR

 60 .02 only allows appeals for claims of error that the moving party did not know, and

 could not with the exercise of reasonable diligence have known, in time to be addressed

 by way of appeal . Relief under CR 60.02 is only provided in those instances where

 relief is not available by direct appeal and not available under RCr 11 .42.26 Because

 CR 60.02 was intended for relief not available by direct appeal or RCr 11 .42, the rule

 may be used only when a defendant has availed himself of the right of direct appeal and

 sought relief under RCr 11 .42 .2' We conclude that the arguments Appellant makes

 regarding the validity of his indictment are issues that were known to him at the time of

 his trial and should have been presented on direct appeal. Thus, Appellant may not

obtain review of the issues raised below by way of this collateral attack means . We

affirm the denial of the motion by the Fayette Circuit Court .

           For the foregoing reasons, we affirm the convictions for manslaughter, attempted

theft by extortion, and second-degree persistent felony offender . We affirm the orders

denying Appellant's habeas corpus petition and his CR 60.02 claim.

           All sitting except Cunningham, J.

           Abramson, Minton, Noble, Schroder, Scott, JJ., concur. Lambert, C.J ., dissents .




25
     Barnett v. Commonwealth , 979 S.W.2d 98, 101 (Ky. 1998).
26
     Gross v. Commonwealth, 648 S.W .2d 853, 855-57 (Ky. 1983).
27
     Id.

                                                   10
COUNSEL FOR APPELLANT :

Damon L. Preston
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601



COUNSEL FOR APPELLEES :

Jack Conway
Attorney General of Kentucky

David W. Barr
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
         '*ixprEms Courf of `itufurhv


                         2005-SC-000782-MR



RUBEN RIOS SALINAS                                     APPELLANT


               ON APPEAL FROM FAYETTE CIRCUIT COURT
V                 HONORABLE GARY D. PAYNE, JUDGE
                           98-CR-001270


COMMONWEALTH OF KENTUCKY                                APPELLEE


                               AND


                         2006-SC-000482-TG



RUBEN RIOS SALINAS                                     APPELLANT


              ON TRANSFER FROM THE COURT OF APPEALS
V.                         2006-CA-000980
                 LYON CIRCUIT COURT NO. 06-CI-000053


TOM SIMPSON                                             APPELLEE


                               AND
                                  2006-SC-000483-TG



RUBEN RIOS SALINAS                                                         APPELLANT


           ON TRANSFER FROM THE COURT OF APPEALS
V.                      2006-CA-000732 .
            FAYETTE CIRCUIT COURT NO. 03-CR-0001296
COMMONWEALTH OF KENTUCKY                                                     APPELLEE



                     ORDER GRANTING PETITION FOR REHEARING
                     AND WITHDRAWING AND REISSUING OPINION


      The petition for rehearing filed by Appellant, Ruben Rios Salinas, is hereby

granted . The Memorandum Opinion of the Court, rendered January 24, 2008, is hereby

withdrawn and the attached Memorandum Opinion is reissued in lieu thereof.

      All sitting except Cunningham, J .

      Abramson, Minton, Noble, Schroder, Scott, JJ., concur. Lambert, C.J ., dissents .

      ENTERED: May 22, 2008 .
