                                                     RENDERED : JUNE 17, 2010
                                                            TO BE PUBLISHED

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                               2008-SC-000915-MR


 RAY'MON JA'KEE ROGERS                                     DDQ4


                     ON APPEAL FROM HARDIN CIRCUIT COURT
V                     HONORABLE JANET P. COLEMAN, JUDGE
                                NO . 07-CR-00251



COMMONWEALTH OF KENTUCKY                                                APPELLEE



                 OPINION OF THE COURT BY JUSTICE VENTERS

                                   AFFIRMING

       Appellant, Ray'mon Rogers, appeals as a matter of rights from a

judgment entered upon a jury verdict convicting him of complicity to commit

murder, complicity to criminal attempt to commit murder, and two counts of

complicity to commit first-degree robbery. In accordance with the jury's

recommendation, he was sentenced to a total of forty years' imprisonment .

       On appeal, Appellant presents the following arguments : (1) that the trial

court erred by refusing to allow him to question the venire panel during voir

dire regarding the difference between the burden of proof at a civil trial versus

a criminal trial; (2) that he was entitled to a directed verdict on both counts of

complicity to first-degree robbery; and (3) that he was entitled to a directed

1 Ky. Const. ~110(2)(b) .
verdict on the charge of complicity to criminal attempt to commit murder. For

the reasons explained below, we affirm .

                   1 . FACTUAL AND PROCEDURAL BACKGROUND

       The evidence presented and viewed in the light most favorable to the

Commonwealth established the following facts . In April 2007, Appellant had

just turned eighteen. He frequently ran around with James Bryant in a Ford

Crown Victoria owned by Bryant's wife. Appellant was well acquainted with

murder victim Marcus Pratt, whom he had known since elementary school .

       On the evening of April 20, 2007, Appellant borrowed the Crown Victoria

and drove to New Albany, Indiana, to pick up Pratt and attempted-murder

victim James Hollister. Hollister testified he saw Pratt had about $800 .00 to

$1,000.00 in cash that night . The group left New Albany, crossed the bridge

into Louisville, picked up two girls, and then went to a liquor store. Pratt paid

for the liquor .

       From there, they went to a residence where they found Bryant. Bryant

joined Appellant, Pratt, Hollister, and the girls in the Crown Victoria. They

stopped at another drive-thru liquor store. Pratt again paid for the liquor.

Hollister noticed that Bryant watched Pratt getting out the cash, and thus

knew that Bryant was aware that Pratt carried a large amount of money on his

person . Then, they went to the girls' apartment where they drank alcohol and

smoked marijuana. Hollister noticed Pratt had two cell phones with him.

      After a while, Pratt told Appellant and Bryant that he and Hollister
wanted to go back to Indiana. Bryant responded there was one more stop to

make, and they left the girls' apartment. After getting back into the vehicle,

Pratt and Hollister fell asleep . Appellant initially drove, but because he was so

intoxicated, Bryant took over the driving, and drove the car to Elizabethtown,

with Hollister and Pratt asleep in the backseat.

      Hollister testified he was awakened by the sounds of Appellant and

Bryant outside the vehicle yelling at Pratt to give them "everything" he had .

Bryant, seeing that Hollister had awakened, pulled him from the vehicle, and

all four began to fight. Pratt tried to run and as he did, Appellant drew a gun

and shot Pratt, killing him. In the meantime, Bryant severely beat Hollister

into unconsciousness .

      In the morning, Hollister woke up and tried to get help at nearby

residences . His cell phone and money were missing. He eventually passed out .

The next thing he remembered was awakening in the hospital, having suffered

a broken nose and other injuries.

      Neither of Pratt's two cell phones, and none of the cash that he had on

his person the previous night was found on his body. In the days following the

murder, Appellant was observed with a large amount of cash and a black cell

phone he had not previously been known to have .

      Police suspicion soon turned toward Appellant and Bryant. In an April

23, 2007, interview with Elizabethtown Police, Appellant admitted to being with

Bryant the evening of April 20, 2007, but claimed that Bryant alone committed
 all of the crimes. Appellant claimed to have been asleep when they arrived at

 Elizabethtown, and that he was awakened by shots outside the vehicle as

 Bryant murdered Pratt. Appellant claimed he then pretended to sleep while

 Bryant pulled Hollister from the vehicle and proceeded to beat him. He

repeated this version of events at trial.

       Appellant was indicted for complicity to murder, complicity to attempted

murder, and two counts of complicity to first-degree robbery. The

Commonwealth filed a notice that it would seek the death penalty, but later

withdrew the notice. Bryant was similarly indicted, but was tried separately.

Appellant was convicted of all charges. The jury recommended a total sentence

of forty years' imprisonment . On November 10, 2008, the trial court issued a

judgment and sentence consistent with the jury's recommendation . This

appeal followed .

    II. THE TRIAL COURT PROPERLY LIMITED VOIR DIRE QUESTIONING

                       REGARDING REASONABLE DOUBT

      Appellant contends that the trial court erred by refusing to allow him to

question the venire panel during voir dire regarding the difference between the

burden of proof at a civil trial versus a criminal trial.

      During voir dire, Appellant's counsel began to ask the venire panel if they

knew the difference between a civil trial and a criminal trial with respect to the

requirement of proof beyond a reasonable doubt. When the Commonwealth

objected, trial counsel explained to the judge that he was trying to "let the jury
 know" that a different standard of proof applied in criminal cases. Later in the

 same bench conference, counsel stated that he was trying to "educate the jury"

 to the fact that a different standard applied in a criminal case . The trial court

 sustained the Commonwealth's objection on the grounds that trial counsel was

 improperly attempting to define reasonable doubt. Although counsel was

 allowed to tell the panel that the burden in a criminal case is "beyond a

reasonable doubt," he was not allowed to contrast that with a civil trial's

"preponderance of the evidence" standard. The trial court concluded that

explaining to the jury that belief beyond a reasonable doubt differed from belief

by a preponderance of the evidence was tantamount to defining reasonable

doubt, and would violate RCr 9.56. We affirm the trial court's exercise of

discretion in limiting Appellant's counsel's statements to the jury, although we

do so for slightly different reasons .

      Trial courts are granted broad discretion and wide latitude in their

control of the voir dire examination under RCr 9 .38 . "While it is within the

discretion of the trial court to limit the scope of voir dire, that discretion is not

boundless. Appellate review of such limitation is for abuse of discretion ."

Hayes v. Commonwealth, 175 S .W.3d 574, 583 (Ky. 2005) (citing Webb v.

Commonwealth, 314 S .W.2d 543, 545 (Ky. 1958)) .

      We observe at the outset that under RCr 9 .38, voir dire is an

"examination of the prospective jurors" by which the court and counsel seek

information from the prospective jurors. It is not an occasion for counsel to
educate the juror panel regarding legal concepts, although competent trial

lawyers might properly structure their questions to the panel in a way that

achieves that end. "The principal purpose of voir dire is to probe each

prospective juror's state of mind and to . . . allow counsel to assess suspected

bias or prejudice." Lawson v. Commonwealth, 53 S .W .3d 534, 539 :(Ky. 2001)

(quoting Thomas v. Commonwealth, 864 S .W.2d 252, 259 (Ky. 1993) .

Educating the jury on legal concepts is the function of the trial court. On that

basis alone, we conclude the trial judge was well within the bounds of her

discretion to limit counsel's attempt to use voir dire for the edification of the

fury.

        We also recognize, however, that in order to fairly exercise the right of

peremptory challenges and challenges for cause, it is sometimes necessary to

introduce legal concepts to the jury panel to ascertain if any prospective juror

is unable or unwilling to adhere to the concept. For example, we have allowed

trial counsel during voir dire to present limited information on the applicable

sentencing options so that inquiry can be made into the ability of each

prospective juror to consider the full range of punishment involved in the case.

Lawson, 53 S .W.3d at 544 . We recognize that concern for a juror's inclination

to apply the reasonable doubt standard of proof may, in some cases, be a

concern as serious as the juror's inclination to consider the full range of

punishment.

        RCr 9.56 states that the jury should not be instructed as to the definition
 of "reasonable doubt." In Commonwealth v. Callahan, 675 S .W.2d 391, 393

 (Ky. 1984), we extended the well-settled prohibition of defining reasonable

 doubt to all points in a trial's proceedings, stating "trial courts shall prohibit

 counsel from any definition of reasonable doubt at any point in the trial[ .]" We

 have held that, subject to appropriate limits, 2 the rule is not offended by

 stating what reasonable doubt is not. Id. at 392 .3 In Johnson v.

 Commonwealth, 184 S .W .3d 544, 549 (Ky. 2005), we concluded that the

prosecutor's statement to the jury panel that "beyond a reasonable doubt" was

not the same thing as "beyond a shadow of a doubt" did not constitute defining

of reasonable doubt. Most recently, in Cuzick v. Commonwealth, 276 S .W.3d

260, 268 (Ky. 2009) we declined to overrule Johnson on that very point4 and

expressly reaffirmed Johnson's point that "in the very case that announced the

prohibition against defining reasonable doubt [Callahan], we held that the

prosecutor's allegedly improper statement, which, at most, attempted to show

what reasonable doubt was not, did not amount to a violation of the rule




 2 Marsch v. Commonwealth, 743 S.W.2d 830 (Ky. 1987) provides an example of such a
    limit. There, during voir dire the prosecutor engaged a prospective juror in a
    lengthy discussion of reasonable doubt that included the prosecutor's statement
    comparing reasonable doubt to a shadow of a doubt and to all doubt, and
    illustrating his comments with hypothetical examples of evidence that may
    represent the varying standards of proof. We found that RCr 9.56 had been
    violated .
3 For example, in Callahan, 675 S .W.2d at 392, the prosecutor's remarks included :
    "When I went to college I had some teachers that could practically prove to you that
    we weren't even here today. But that's not what reasonable doubt is." We decided
    that the comments of the prosecutor did not constitute any attempt to define
    reasonable doubt, but rather what reasonable doubt was not. Id. at 393 .
4 In Cuzick, 276 S .W.3d 260, the decision was divided on other issues into three
    separate opinions, however the full court concurred on the point cited herein.
against defining 'reasonable doubt ."' Cuzick, 276 S.W .3d at 269 (citing

Johnson, 184    S .W .3d at 549) . 5

       As we noted above, the voir dire examination is to inform the court and

trial counsel about the prospective jurors and not to educate the jury . But just

as a juror's ability to consider the full range of penalties is frequently cause for

legitimate concern, trial judges or trial counsel on both sides of a criminal case

occasionally have reasonable concerns that prospective jurors may be confused

or misinformed by the various standards of proof to which they have been

exposed by prior jury service, news reports, television shows, or elsewhere,

resulting in the inability or unwillingness of jurors to apply the reasonable

doubt standard . The history of our cases on the subject plainly demonstrates

such concern from the prosecutor's perspective, and we have consistently held

their efforts to point out that reasonable doubt is not "all doubt" or a "shadow

of a doubt" were either proper or were, at most, harmless error. Appellant

argues that defense counsel with a similar concern should have the same

opportunity to point out that the "beyond a reasonable doubt" standard

required in a criminal case is not the same as the "preponderance of the

evidence" standard applicable in most civil trials . We find no fault in that logic .

      Accordingly, we agree that stating to the jury that "beyond a reasonable

doubt" is not the same thing as the civil trial standard of "beyond a




5 The fluid nature of this Court's view on this issue is revealed by comparison of
  Johnson and Cuzick with our decision in Brooks v. Commonwealth, 217 S.W .3d 219
  (Ky . 2007), holding that the prosecutor's closing argument that beyond a reasonable
  doubt did not mean beyond all doubt was improper, but harmless.

                                           8
 preponderance of the evidence" does not constitute defining reasonable doubt. 6

 In so holding, we remain consistent with our decisions in Callahan, Johnson,

 and Cuzick . Subject always to the trial court's sound discretion, such

 statements to the jury, if limited to the bare comment illustrated in the

 preceding sentence, are permissible during voir dire when used as the factual

 predicate for a question seeking to ascertain if any prospective juror would be

unable to apply the reasonable doubt standard . Doing so does not violate RCr

9 .56's prohibition against defining reasonable doubt, nor does it offend the

principles set forth in Taylor v. Kentucky, 436 U .S . 478 (1978) or Whorton v.

Commonwealth, 570 S .W .2d 627, 631 (Ky. 1978) (overruled on other grounds

by Kentucky v. Whorton, 441 U .S . 786, (1979)), which led this Court to amend

RCr 9.56 to its present form. Moreover, it accommodates the legitimate

interest of all parties in a criminal case for assurance that jurors who cannot

apply the reasonable doubt standard will be subject to challenge.

       Appellant's counsel, however, never suggested to the trial court that he

wanted to inquire if any juror would be unable to follow the criminal standard

of proof beyond a reasonable doubt or would instead be inclined to apply the

standard used in civil trials . Had he done so, the trial court's refusal to allow

the inquiry would be subject to harmless error analysis . Cuzick, 276 S.W.3d at

267. Because our review of the record discloses that Appellant's sole purpose


6 Theoretically, of course, it would be possible to completely define a thing by
  describing all that it is not. The limited comments described in Callahan, Johnson
  and Cuzick did not attempt define reasonable doubt by the process of eliminating all
  that it is not. We trust the sound discretion of our trial judges, guided by the
  limiting rule set forth herein, to be sufficient to restrain an improper attempt to
  define reasonable doubt.
in raising the matter during voir dire was to educate the jury, rather than to

elicit potentially disqualifying information about the jury, we conclude that the

trial court did not err when it terminated counsel's discussion of the issue.

       III . APPELLANT WAS NOT ENTITLED TO A_DIRECTED VERDICT
            ON THE COMPLICITY TO ATTEMPTED MURDER CHARGE

      Appellant next contends that he was entitled to a directed verdict on the

complicity to attempted murder charge . He argues that the Commonwealth, at

best, merely proved that he was present at the scene, and that his mere

presence is insufficient to establish complicity in the attempted murder of

Hollister. He also alleges that the Commonwealth did not prove there was any

intent to kill Hollister, or that Appellant aided and assisted Bryant in Hollister's

beating. To properly assess his claim, we must consider both the meaning of

complicity, KRS 502 .020, and the meaning of criminal attempt, KRS 506 .010 .

      In considering a motion for a directed verdict, the trial court is required

to draw all fair and reasonable inferences from the evidence in favor of the

Commonwealth . Commonwealth v. Benham, 816 S .W.2d 186, 187 (Ky. 1991) .

      [I]f the evidence is sufficient to induce reasonable juror to believe
      beyond reasonable doubt that defendant is guilty, directed verdict
      should not be given; for purpose of ruling on motion, trial court
      must assume that evidence for Commonwealth is true, but
      reserving to jury questions as to credibility and weight to be given
      to such testimony.

      On appellate review, test of directed verdict is, if under evidence as
      whole, it would be clearly unreasonable for jury to find guilt, only
      then defendant is entitled to directed verdict of acquittal . . . there
      must be evidence of substance, and the trial court is expressly
      authorized to direct a verdict for the defendant if the prosecution
      produces no more than a mere scintilla of evidence .
 Id. (internal citations omitted) .

       The criminal complicity statute, KRS 502 .020,7 "describes two
       separate and distinct theories under which a person can be found
       guilty by complicity, i .e ., `complicity to the act' under subsection (1)
       of the statute, which applies when the principal actor's conduct
       constitutes the criminal offense, and `complicity to the result'
       under subsection (2) of the statute, which applies when the result
       of the principal's conduct constitutes the criminal offense[ .]"

 Tharp v. Commonwealth, 40 S.W .3d 356, 360 (Ky. 2000) .

       The primary distinction between these two statutory theories of

accomplice liability is that a person can be guilty of "complicity to the act"

under KRS 502 .020(1) only if he/she possesses the intent that the principal

actor commit the criminal act. However, a person can be guilty of "complicity

to the result" under KRS 502 .020(2) without the intent that the principal's act

cause the criminal result, but with a state of mind which equates with "the

kind of culpability with respect to the result that is sufficient for the

7 KRS 502 .020 provides as follows :
(1) A person is guilty of an offense committed by another person when, with the
    intention of promoting or facilitating the commission of the offense, he :
    (a) Solicits, commands, or engages in a conspiracy with such other person to
        commit the offense ; or
    (b) Aids, counsels, or attempts to aid such person in planning or committing the
        offense ; or
    (c) Having a legal duty to prevent the commission . of the offense, fails to make a
        proper effort to do so .
(2) When causing a particular result is an element of an offense, a person who acts
   with the kind of culpability with respect to the result that is sufficient for the
   commission of the offense is guilty of that offense when he:
   (a) Solicits or engages in a conspiracy with another person to engage in the conduct
       causing such result ; or
   (b) Aids, counsels, or attempts to aid another person in planning, or engaging in the
       conduct causing such result; or
   (c) Having a legal duty to prevent the conduct causing the result, fails to make a
       proper effort to do so .
commission of the offense," whether intent, recklessness, wantonness, or

aggravated wantonness . KRS 502 .020 (1974 Official Commentary) ; R . Lawson

and W. Fortune, Kentucky Criminal Law § 3-3(b)(3), at 106, § 3-3(c)(2), at 114

(LEXIS 1998) .

       Conspiracy, as envisioned by the statute governing complicity, does not

necessarily require detailed planning and a concomitant lengthy passage of

time . All that is required is that defendants agree to act in concert to achieve a

particular objective and that at least one of them commit that objective .

Commonwealth v. Wolford, 4 S.W .3d 534, 540 (Ky. 1999) . "The existence of a

conspiracy can be proven . . . by circumstantial evidence." Id. However,

absent a showing of other facts and circumstances connecting a defendant

with the crime, mere presence at the scene of the crime is not sufficient to

attach guilt to defendant. McIntosh v. Commonwealth, 582 S.W.2d 54, 57 (Ky.

App . 1979) (abrogated on other grounds by Commonwealth v. Clemons, 734

S .W .2d 459 (Ky . 1987)) .

      Appellant's claim that he was "merely present" at the scene of the crime

bears no resemblance to the evidence, when viewed most favorably to the

Commonwealth . Hollister testified that when he awoke at the crime scene,

Appellant and Bryant were together outside the vehicle accosting Pratt and

demanding that he give them "everything he had," which would include Pratt's

large sum of money. This strongly suggests that Appellant and Bryant were

acting in concert to steal Pratt's money. When they realized that Hollister was
awake, Bryant immediately attacked him, and the scuffle ensued - Appellant

and Bryant against Pratt and Hollister. Again, this suggests that Appellant and

Bryant were allied in their conduct. Then, while Bryant kept Hollister

occupied, Appellant shot Pratt, further indicating that Appellant and Bryant

were complicit in each other's crimes.

      In summary, there was sufficient evidence that Appellant aided or

conspired with Bryant so as to present a jury issue regarding accomplice

liability under the complicity statute .

      Appellant argues, however, that even if he was found to be complicit in

Bryant's crime against Hollister, there was insufficient evidence to show that

Bryant's beating of Hollister constituted an attempt to kill him.

      KRS 506.010, the criminal attempt statute, provides as follows:

      (1) A person is guilty of criminal attempt to commit a crime when,
      acting with the kind of culpability otherwise required for
      commission of the crime, he:

            (a) Intentionally engages in conduct which would constitute
            the crime if the attendant circumstances were as he believes
            them to be; or

            (b) Intentionally does or omits to do anything which, under
            the circumstances as he believes them to be, is a substantial
            step in a course of conduct planned to culminate in his
            commission of the crime.

     (2) Conduct shall not be held to constitute a substantial step under
     subsection (1) (b) unless it is an act or omission which leaves no
     reasonable doubt as to the defendant's intention to commit the
     crime which he is charged with attempting.

     (3) A person is guilty of criminal attempt to commit a crime when
     he engages in conduct intended to aid another person to commit
      that crime, although the crime is not committed or attempted by
      the other person, provided that his conduct would establish
      complicity under KRS 502 .020 if the crime were committed by the
      other person .

      Thus, in addition to the evidence of complicit acts described above in this

section, the Commonwealth was obligated to present sufficient evidence that in

beating Hollister, Bryant intended to cause Hollister's death . The

Commonwealth may prove intent by circumstantial evidence . Varble v.

Commonwealth, 125 S .W.3d 246, 254-55 (Ky. 2004) ; Blades v. Commonwealth,

957 S.W.2d 246, 250 (Ky. 1997) . Circumstantial evidence is evidence that

makes the existence of a relevant fact "more likely than not." Timmons v.

Commonwealth, 555 S .W .2d 234, 237-38 (Ky. 1977) . Although circumstantial

evidence "must do more than point the finger of suspicion," Davis v.

Commonwealth, 795 S.W.2d 942, 945 (Ky. 1990), the Commonwealth need not

"rule out every hypothesis except guilt beyond a reasonable doubt." Jackson v.

Virginia, 443 U.S . 307 (1979) ; Ratliff v. Commonwealth, 194 S .W.3d 258, 267

(Ky. 2006) . A ""[c]onviction can be premised on circumstantial evidence of such

nature that, based on the whole case, it would not be clearly unreasonable for

a jury to find guilt beyond a reasonable doubt." Graves v. Commonwealth, 17

S.W .3d 858, 862 (Ky. 2000) .

      While Appellant naturally tries to minimize the severity of the beating,

the evidence demonstrates Hollister was beaten into unconsciousness and left

at the scene unattended . Thus, a reasonable inference from the evidence is
that Appellant and Bryant, in addition to robbing Hollister, also sought to

 eliminate him as a witness by killing him, and when Hollister became

unconscious, Appellant and Bryant thought they had accomplished their

purpose and left him for dead . Even after regaining consciousness and seeking

help the next morning, Hollister again lapsed into unconsciousness. While it

appears that his most serious injury was a broken nose, Hollister testified that

as a result of the beating he had scars on his forehead, the top of his head, and

his arm, shoulder, and chest. The emergency room physician who examined

Hollister testified that it required numerous CAT scans to evaluate his head

injuries, the purpose of which was to look for possible intracranial bleeding

and broken bones in Hollister's face and neck - injuries which could have been

life-threatening .

      We conclude that sufficient evidence was presented to support the

conclusion that Bryant, with Appellant's aid and assistance, attempted to

murder Hollister. Appellant was not entitled to a directed verdict on the charge

of complicity to the attempted murder of Hollister.

       IV. APPELLANT WAS NOT ENTITLED TO A DIRECTED VERDICT
               ON THE COMPLICITY TO ROBBERY CHARGES

      Finally, Appellant argues that he was entitled to a directed verdict on the

two charges of complicity to first-degree robbery. With respect to the charged

robbery of Pratt, Appellant argues there was no proof concerning what Pratt

may have done with the money he had shortly before the shooting; that no one
    saw anyone take or remove anything from Pratt; that Pratt still had crack

    cocaine in his pocket following his death; and that Appellant had only $35.00

    on him when he was arrested .

          With respect to the robbery charge against Hollister, Appellant argues

    that there was no evidence that he was complicit in taking anything from

    Hollister. While acknowledging that Hollister testified that his cell phone and

 money were missing following the beating, Appellant argues that his mere

 presence at the scene cannot support a conviction for the robbery.

         To be convicted of robbery,$ the accused need not have taken any money

or other property from the victim with his own hands, or actually participated

in any other act of force or violence; it is sufficient that he came and went with

the robbers, was present when the robbery was committed, and acquiesced .

Commonwealth v. Smith, 5 S .W.3d 126 (Ky . 1999) (quoting 67 Am.Jur.2d,

Robbery § 9, p. 62) .

         There is substantial circumstantial evidence that Appellant and Bryant

robbed Pratt and Hollister. Moments before the shooting of Pratt, Hollister

heard Appellant and Bryant demanding that Pratt give them everything he had.

When Pratt failed to comply, the fight ensued. When Pratt attempted to get

away with his money and his life, he was killed . Hollister's money and cell

8 The first-degree robbery statute, KRS 515 .020, provides as follows :
(1) A person is guilty of robbery in the first degree 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 .

                                          16
 phone were taken while he was unconscious from the serious physical injury

 inflicted by Bryant and Appellant . The evidence that Appellant shot Pratt and

 that Bryant beat Hollister allows for a reasonable inference that the purpose of

 the use of such force was to accomplish the theft. As discussed in the previous

 section, the evidence supports the reasonable inference that Appellant was

acting in complicity with Bryant so as to attribute to him conduct committed

exclusively by Bryant. Appellant was not entitled to a directed verdict on the

two robbery charges.

                                  V . CONCLUSION

         For the foregoing reasons the judgment and sentence of the Hardin

Circuit Court is affirmed .

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

concurs by separate opinion in which Cunningham, J ., joins.

         SCOTT, J., CONCURRING : Although I concur in the result in this

instance for reasons that the error here was harmless, I feel strongly that both

Appellant and the Commonwealth do have a right to educate a jury on legal

issues critical to a fair trial. That a "preponderance" is lower than "beyond a

reasonable doubt" is such an issue, and pointing out simply which is lower

does not define either one . If we are to retain our "bare bones" approach to

instructions, rather than follow the federal practice, we must allow counsel this

right.

         Cunningham, J., joins.
COUNSEL FOR APPELLANT :

Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601

COUNSEL FOR APPELLEE :

Jack Conway
Attorney General

Todd Dryden Ferguson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
