        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   NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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.
                                                  RENDERED : OCTOBER 1, 2009
                                                       NOT TO BE PUBLISHED
                 Q
                07uyx'$xCCP       End -of          ~~

                               2008-SC-000770-MR

                                                                              _~ .
                                                                                     ;   IClahv~- 4~.C.
 RAYMOND J. GARNER                                                     APPELLAN"1~


                  ON APPEAL FROM WHITLEY CIRCUIT COURT
V.                   HONORABLE PAUL BRADEN, JUDGE
                             NO. 07-CR-00111


COMMONWEALTH OF KENTUCKY                                                APPELLEE


                   MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING


      Appellant Raymond J. Garner was charged with and convicted of

multiple crimes, including two counts of murder, stemming from a multiple car

collision. On appeal, he argues that the trial court erred by allowing evidence

that he was driving on a suspended license on the day of the accident, and by

failing to give the jury a separate instruction outlining the hierarchy of possible

lesser-included offenses . Finding no merit in either contention, Appellant's

convictions are affirmed .

                                  I. Background

      On the day of the accident, Appellant was in the process of moving from

Tennessee to northern Kentucky . He, along with his brother and sister-in-law,

spent the day loading his pickup truck and trailer for the move. The three

drank beer as they worked. Appellant also took some prescription diazepam
 (also known as Valium) that day. When the packing was done, Appellant's

 brother and sister-in-law left and drove north . Appellant remained behind to

 conclude some business related to the sale of his home. He also bought a box

 of wine.

           Appellant began driving his truck and trailer north on I-75 later that

 evening. As he drove, Appellant drank wine . Just south of Williamsburg,

 Kentucky, he lost control of his truck, crossed the median into oncoming

 traffic, and struck a car being driven by Peter Pontikis in which his two sons

 were passengers, and then struck a van being driven by Cindy Haas, who was

 seven months pregnant, and in which six passengers were riding. Cindy Haas

and her unborn fetus and one of Pontikis's sons died . Pontikis and his other

son, along with two other people in the van, suffered serious injuries .

       A test of Appellant's blood revealed an alcohol content of . 18g/ 100mL

and the presence of drug metabolites. Appellant had been convicted of driving

under the influence twice in the five years preceding the accident . His driver's

license was also suspended as a result of his latest conviction, which had

occurred only two months before the crash.

       Appellant was indicted for two counts of wanton murder; one count of

fetal homicide ; four counts of first-degree assault; one count of driving under

the influence (DUI), third offense; and one count of driving while his license

was suspended for DUI . Just prior to trial, Appellant entered a guilty plea to

the DUI and driving while his license was suspended . At trial, the jury found

Appellant guilty of the remaining charges. Appellant was sentenced to life in

prison .
        Appellant appeals to this Court as a matter of right . Ky . Const .

 § I 10(2)(b) .

                                     II. Analysis

            A. Evidence that Appellant's Driver's License Was Suspended

        Appellant's first claim is that the trial court improperly allowed evidence

that he was driving on a suspended license on the day of the crash . He argues

that such evidence was both irrelevant and improper evidence of other bad

actions under KRE 404(b) .

        During the jury selection process, the judge called the attorneys to the

bench to inquire about the DUI and suspended-license counts . Defense

counsel indicated that Appellant wanted to enter a guilty plea to those charges .

The judge then stated that he would still read the DUI charge but without

stating it was a third offense and would read the driving with a suspended

license charge. A moment later, defense counsel objected to reading the

suspended license charge to the jury since they would not be going to trial on it

and stated that it was not relevant to the other charges. The prosecutor

responded that it was relevant as to the wantonness element . The judge said

that even with a plea of guilty, it was still part of the case and the jury would

need to know, so he would simply tell them that he had been charged with the

offense.

       Just before opening statements, the judge reviewed the motion to enter a

guilty plea on the two counts and granted it. Defense counsel then stated the

motion was made "with [a] standing objection about the suspended driver's

license."
          However, it appears the prosecutor never introduced evidence of the

    status of Appellant's driver's license, The prosecutor did mention it in his

    opening statement, saying: "This defendant was also charged with driving

    under the influence and driving on a suspended license . He had no valid

    driver's license. But he has pled guilty to those charges, so you won't have to

    decide that. He has admitted and you will hear that he was driving intoxicated

and that he had no license-it had been suspended-when he was driving." If

any evidence of this was introduced in the prosecution's case, Appellant has

failed to cite to it in the record . In its brief, the Commonwealth claims that no

such evidence was introduced until Appellant and his brother mentioned it on

direct-examination during the defense's case.'

         Even assuming that evidence of the suspended driver's license could be

error, it is not clear that there would be any such error to complain of. The

prosecution's opening statement is not evidence, as this Court has on many

occasions held. E.g. , Stopher v. Commonwealth, 57 S .W.3d 787, 805-06 (Ky.

2001) ("We have consistently held that opening and closing arguments are not

evidence and prosecutors have a wide latitude during both.") . The trial court in

this case emphasized this point by admonishing the jury that what was said in

the openings and closings should not be considered as evidence. Thus, the



1   While describing why Appellant was moving from Tennesse, his brother testified on
    direct that he had a job and planned to move in with a friend who worked at the
    same place. When asked about the reason for living with the friend, the brother
    replied: "He was going to move in with him because he knew he was going to lose his
    license and stuff and that was his ride back and forth to work everyday." Appellant
    testified similarly on direct, stating that he had planned to live with a friend with
    whom he had previously worked on a construction project and would be working
    with again . When asked why, he stated, "I was losing my license."
                                                 4
prosecutor's discussion in his opening statement could not be improperly

admitted evidence.

       Moreover, even had the prosecutor introduced such evidence in his case

in chief, it would not have been improper, under either the requirement of

relevancy or the general bar on evidence of other bad acts . The murders

Appellant was charged with require a mental state of wantonness, which is

defined as follows:

      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(3) .

      That Appellant's license was suspended because of a prior DUI

conviction was relevant because it showed that the state had rejected his

driving privilege for engaging in illegal, dangerous behavior. The prior rejection

of his driving privilege, especially for a DUI, helped show that his driving on the

day of the crash was done with awareness of and conscious disregard of the

risk that a deadly crash would occur as a result . Such evidence may be only

slightly probative of this fact, but it is relevant, and thus satisfies the

requirements of KRE 401 .

      This discussion also demonstrates why such evidence would not violate

KRE 404(b) . Though evidence of a suspended license does show other prior
 bad acts (in this case, a DUI, if only circumstantially), its intended use was not

 to show character or action in conformity with that character. Instead, it

would fall under the "other purpose" exception of KRS 404(b) (1) because it goes

to show the state of mind of the defendant, which is an essential element of the

crime of murder (and its lesser-included offenses) .

       Thus, this Court concludes that there was no reversible error related to

evidence or mention of the suspension of Appellant's driver's license .

                  B. Instruction on Lesser-Included Offenses

       Appellant also claims that the trial court erred by not giving a jury

instruction that "expressly delineated the hierarchy of the various charges,"

specifically by noting the relationship of second-degree manslaughter and

reckless homicide as lesser-included offenses of wanton murder . Appellant

tendered the following instruction at trial :

                           Presumption of Innocence

      The law presumes the defendant to be innocent of a crime and the
      indictment shall not be considered as evidence or as having any
      weight against him . You shall find the defendant not guilty unless
      you are satisfied from the evidence alone and beyond a reasonable
      doubt that he is guilty. If upon the whole case you have a
      reasonable doubt that the defendant is guilty of some offense but
      have a reasonable doubt as to the degree of offense of which he is
      guilty, you will find him guilty of the offense of the lower degree .
      Second degree man slaughter [sic] is an offense of a lower degree,
      and reckless homicide is an offense of a lower [sic] than second
      degree man slaughter [sic] .

      Instead of giving this instruction, the trial court instead gave an

instruction on the presumption of innocence that tracked the one laid out in

RCr 9 .56. The court also listed the authorized verdicts for the murder charges

as:
              MURDER

       OR     SECOND DEGREE MANSLAUGHTER

       OR     RECKLESS HOMICIDE

 The substantive instructions on the lesser-included offenses followed the

 standard route of delineating between the possible lesser-included offenses by

noting each lesser-included as an alternative method of finding guilt

conditioned on there being insufficient evidence for a conviction under the

prior instructions . For example, the first count of murder was covered by

Instruction No. 3 . Instruction No. 4 stated in relevant part, "If you do not find

the Defendant guilty under Instruction No. 3, you will find the Defendant guilty

of Second-Degree Manslaughter under this Instruction if, and only if, you

believe . . . ." Instruction No . 5 stated in relevant part, "If you do not find the

Defendant guilty under Instruction No . 3 or 4, you will find the Defendant

guilty of Reckless Homicide under this Instruction if, and only if, you

believe. . . ." The instructions for the second count of murder followed the same

pattern.

      These instructions sufficiently laid out the hierarchy of the offenses and

presented the lesser-included offenses as alternatives to the higher offenses .

There is no requirement under the current Rules of Criminal Procedure that a

trial court give the sort of instruction that Appellant sought. See Butts v.

Commonwealth , 953 S .W .2d 943, 946 (Ky. 1997), overruled in part on other

grounds by Commonwealth v. McCombs , NO. 2007-SC-000127-DG,

   S.W.3d     , 2009 WL 735794 (Ky . Mar. 19, 2009) ("[A]n instruction [on

reasonable doubt as to the degree of offense] is now viewed as unnecessary,
                                           7
 particularly when the same concepts are dealt with in other instructions .") ;

 Carwile v. Commonwealth, 656 S.W .2d 722, 724 (Ky. 1983) ("Under the Rule

 of Criminal Procedure [RCr 9 .56], courts are no longer required to instruct

upon reasonable doubt concerning the degree of the offense .") .

       This is not to say, however, that a court would necessarily err by giving

an instruction similar to that proposed by Appellant which specifically

described reasonable doubt as to the level of offense. As the Court noted in

Butts, "this language does not suggest that a court may never instruct on

reasonable doubt as to the degree of the offense . . . ." 953 S.W.2d . at 946. But

the Court went on to note that "the giving of any such further instruction

should be avoided ." Id .

       Nevertheless, this Court still cannot say that such instructions are

always improper . But if a situation arose where a trial court concluded that

such an instruction was desirable, caution is urged . Any court deciding to give

such an instruction must make sure the instruction is proper in form, because

improper reasonable doubt instructions are reversible error. Id. ("[O]ur

decisions. . . do not require that an instruction be given on reasonable doubt as

to the degree of the offense, but do require that when such an instruction is

given that it be given correctly.") ; 1 William S. Cooper 8s Donald P. Cetrulo,

Kentucky Instructions to Juries, Criminal § 2 .02 cmt. (5th ed. 2006) ("[A]n

instruction on reasonable doubt as to the degree of offense is not required,

. . . [but] if one is given it should be done correctly.") . For further discussion of

the subject, see the commentary and instruction examples in sections 2 .02 to

2 .03B of Justice Cooper and Mr. Cetrulo's book.
                                           8
                                 III. Conclusion

       For the forgoing reasons, the judgment of the Whitley Circuit Court is

affirmed .

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

Schroder, J., concurs in result only. Venters, J., not sitting.



COUNSEL FOR APPELLANT:

David S. Hoskins
107 East First Street
Corbin, Kentucky 40701-1401



COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

Bryan Darwin Morrow
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
