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                                                   RENDERED : AUGUST 27, 2009
                                                        NOT TO BE PUBLISHED

                   Sixyr-mtr Courf -of



 CHARLOTTE HALL                                                         APPELLANT


                   ON APPEAL FROM WOLFE CIRCUIT COURT
V                 HONORABLE FRANK A. FLETCHER, JUDGE
                              NO . 05-CR-00075


COMMONWEALTH OF KENTUCKY                                                APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                         REVERSING AND REMANDING

       On May 6, 2006, thirteen-year-old Dylan McIntosh died as a result of

acute methadone intoxication . Following a jury trial in January 2007, Dylan's

mother, Charlotte Hall, was found guilty of murdering her son by wantonly

permitting him to ingest the drug . Hall appeals as a matter of right from the

March 9, 2007 Judgment of the Wolfe Circuit Court incorporating that verdict

and sentencing her, in accord with the jury's recommendation, to thirty years

and one day in prison . Hall contends that the trial court erred (1) by denying

her motion for a directed verdict; (2) by permitting the introduction of hearsay

statements by her co-defendants ; (3) by permitting the introduction of prior

bad acts evidence ; (4) by refusing to instruct the jury on facilitation of wanton

murder; (5) by refusing to strike a juror for cause; and (6) by coercing the jury

to reach a sentencing recommendation . We agree with Hall that the evidence
 did not support a finding of murder and so must reverse the trial court's

 judgment and remand for additional proceedings .

                                 RELEVANT FACTS

        Hall did not testify at trial, but the jury heard an audio recording of her

 interview with Detective Tim Gibbs of the Kentucky State Police . Hall told

 Detective Gibbs that on May 5, 2006, she and Dylan had accepted the

 invitation of a friend, Jamie Watson, to spend the night at the Campton,

 Kentucky, residence Watson shared with another of Hall's friends, Jim Land.

 According to Hall, Dylan, who suffered from attention deficit hyperactive

 disorder (ADHD), was "hyper" when they reached the Watson/ Land residence,

and because she was out of the medicine-Depakote-prescribed for his

condition, she gave him one of her Klonopin tranquilizers instead . She later

learned that Watson had also given Dylan a Klonopin.

       That night, according to Hall, the three adults engaged in heavy drug

use . Land had recently filled his prescription for methadone, a synthetic

narcotic, and all three adults ingested methadone intravenously and by

"snorting" it . They also ingested other prescription drugs. Hall stated that at

some point during the evening Watson had crushed one of Land's methadone

pills into a powder, had divided the powder into four "lines," and that she, Hall,

had acquiesced in Land's and Watson's giving one of the "lines" to Dylan. She

claimed that she did not actually see Dylan ingest the methadone, because he

carried it into another room, but she admitted that she had given him a fifty-

dollar bill to roll into a straw for the purpose of "snorting" the methadone
 powder. She also stated that at some other point during the night Dylan told

 her that Watson had given him a "bunch" of methadone pills, and that rather

 than taking the pills away from him she had said, "Dylan, you don't need the

 god-damned methadones . Put the sons-of-bitches up. You've got school

tomorrow . We're supposed to be straightening up ."

       According to Hall's statement, Dylan went to sleep at about 11 :00 p.m.,

and at about 6:00 or 6:30 a.m ., she tried to rouse him for school, but he was

snoring deeply and would not be roused. She fell back to sleep, and at about

 10 :00 a.m., when she next awoke, Dylan's lips had turned blue. She tried

throwing water in his face, shaking him, "blowing in his mouth," and

"pounding on his chest," but she could not awaken him.

       Soon thereafter Land's mother, who lived nearby, came to the door with a

neighbor looking for Land. She testified that upon seeing Dylan's lack of color

she called for emergency assistance. Dylan was pronounced dead at the

Appalachian Regional Hospital in West Liberty, Kentucky . Post-mortem

analysis indicated a blood-methadone level of 0.25 milligrams per liter, and the

medical examiner determined that Dylan died from acute methadone

intoxication .

      Hall, Land, and Watson were all indicted in conjunction with the death .

Hall was tried separately . Although the Commonwealth presented additional

evidence confirming the presence of methadone in the Land/Watson residence,

confirming the fact that the three adults had ingested methadone and other

drugs, and confirming Dylan's death prior to or soon after his arrival at the
 hospital, Hall's statement and the post-mortem examiner's testimony assigning

 the cause of death were the crux of the Commonwealth's case . Hall contends

 that that evidence was insufficient to support a finding of wanton murder . We

 agree .

                                     ANALYSIS

 I. The Commonwealth's Proof Did Not Support A Finding Of Wanton
 Murder, But Did Support A Finding Of Reckless Homicide .

       As the Commonwealth correctly notes,

             [o]n motion for a directed verdict, the trial court must
             draw all fair and reasonable inferences from the
             evidence in favor of the Commonwealth . If the
             evidence is sufficient to induce a reasonable juror to
             believe beyond a reasonable doubt that the defendant
             is guilty, a directed verdict should not be given. For
             the purpose of ruling on the motion, the trial court
             must assume that the evidence for the Commonwealth
             is true, but reserving to the jury questions as to the
             credibility and weight to be given to such testimony.

                 On appellate review, the test of a directed verdict is,
             if under the evidence as a whole, it would be clearly
             unreasonable for a jury to find guilt, only then the
             defendant is entitled to a directed verdict of acquittal.

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

       A directed verdict, moreover, should be granted only

             when the defendant is entitled to a complete
             acquittal[,] i.e., when, looking at the evidence as a
             whole, it would be clearly unreasonable for a jury to
             find the defendant guilty, under any possible theory, of
             any of the crimes charged in the indictment or of any
             lesser included offenses .

Campbell v. Commonwealth, 564 S.W.2d 528 (Ky. 1978) . Accord, Nichols v.

Commonwealth , 142 S.W. 3d 683 (Ky. 2004) . In cases where there may be
 insufficient evidence to satisfy the burden of proof on a primary offense, but

 there is sufficient evidence to satisfy the burden of proof on a lesser-included

 offense, the issue regarding the insufficiency of the evidence is preserved by

 making a timely objection to the jury instruction on the unproved offense .

Campbell v. Commonwealth , supra; Kimbrou h v. Commonwealth , 550 S.W .2d

525 (Ky. 1977) . In this case, Hall moved for a directed verdict of acquittal, but

she did not object on sufficiency grounds to the jury instruction charging her

with wanton murder or to either of the instructions charging her with the

lesser-included offenses of second-degree manslaughter or reckless homicide .

Her directed verdict motion was properly denied, therefore, if the evidence was

sufficient to support the least of these offenses, that of reckless homicide .

       Reckless homicide is defined in KRS 507.050, which provides that

             A person is guilty of reckless homicide when, with
             recklessness he causes the death of another person .

       "Recklessness" is defined in KRS 501 .020(4) :

             A person acts recklessly with respect to a result or to a
             circumstance described by a statute defining an
             offense when he fails to perceive 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 failure to perceive it constitutes a
             gross deviation from the standard of care that a
             reasonable person would observe in the situation .

As we noted in Lofthouse v . Commonwealth, 13 S .W.3d 236 (Ky. 2000), another

case in which the defendant was charged with reckless homicide for having

supplied a fatal overdose of illicit drugs,

             [w]hen wantonly or recklessly causing a particular
             result is an element of an offense, the element is not
                                          5
              established if the actual result is not within the risk of
              which the actor is aware or, in the case of
              recklessness, of which he should be aware.

 Id. at 239 (quoting KRS 501 .060(3)) .

       In Lofthouse , the defendant shared his supply of cocaine and heroin with

 the decedent . The defendant had used similar amounts of cocaine and heroin

 previously without critical consequences, and he had previously observed the

 decedent use similar amounts of cocaine . We reversed the defendant's reckless

 homicide conviction because, although the Commonwealth had proved the

 toxic qualities of the drugs involved and had proved that the amounts of the

drugs found in the decedent's body could be fatal, it had failed to prove that

             a layperson, such as Appellant, should reasonably
             have known that there was a substantial risk that the
             amount of cocaine and heroin ingested by [the
             decedent] would result in his death.

Id. at 241 . It was not enough, we held, for the Commonwealth to prove merely

"that the dosages were fatal to [the decedent] ." Id. at 242 .

      In Powell v. Commonwealth , 189 S.W.3d 535 (Ky. 2006), on the other

hand, a methamphetamine overdose case, we upheld a reckless homicide

conviction where the drug supplier, knowing that the victim had recently

suffered an adverse reaction to methamphetamine from which she had barely

"pulled through," administered intravenously what the post-mortem examiner

characterized as a lethally large dose of that drug. A jury could properly

conclude, we held, that a reasonable person in those circumstances would

have realized that methamphetamine in the amount the defendant injected into

the victim posed a substantial risk of killing her.

                                          6
       This case lies somewhere between Lofthouse and. Powell . Unlike

Lofthouse , in which an adult voluntarily ingested a quantity of illicit drugs that

killed him, this case involves the provision of potentially dangerous drugs to a

child. Unlike Powell, on the other hand, there was no medical testimony or

other evidence estimating or characterizing the amount of methadone Dylan

ingested, nor was there evidence that Hall was on notice of Dylan's particular

reaction to methadone .

       A conviction of reckless homicide in this case required proof beyond a

reasonable doubt that Dylan's ingestion of methadone caused his death ; that

there was a substantial and unjustifiable risk that Dylan would die if he

ingested the methadone which the adults furnished him; and that the risk of

Dylan's death was of such a nature and degree that Hall's failure to perceive it

constituted a gross deviation from the standard of care that a reasonable

person would observe in the circumstances, i. e., that Dylan's death was

foreseeable as a reasonable probability. KRS 507 .050 ; KRS 501 .020(4) . In

Lofthouse we rejected the Commonwealth's argument that schedule I and

schedule 11 controlled substances are inherently dangerous and always pose a

risk of death. As noted above, we held instead that beyond the drugs

themselves, proof of risk and foreseeability are required:

            the Commonwealth needed to prove not only the toxic
            qualities of cocaine and heroin, but also that a
            layperson, such as Appellant, should reasonably have
            known that there was a substantial risk that the
            amount of cocaine and heroin ingested by [the
            decedent] would result in his death .
 13 S .W.3d at 241 . Much as in Lofthouse, beyond the drug itself, there was

 simply no proof in this case tending to establish either the magnitude or the

 foreseeahility of the risk . There was no evidence, for example, that Dylan,
             his
 because of      youth or some other reason, may have been unusually

 susceptible to methadone poisoning, nor was there evidence that the amount of

the drug he ingested posed a substantial risk of poisoning . In the case of a

child as young as this, however, we are unwilling to adhere mechanically to the

proof requirements of Lofthouse . We are convinced, rather, given the universal

recognition that children are more susceptible to the hazards of illicit drugs

than are adults and given our law's overriding policy of protecting children

from those hazards' that a reasonable jury could find, beyond a reasonable

doubt, that providing a thirteen-year-old child with a "bunch" of ten milligram

methadone pills, particularly knowing that the child had already ingested. two

Klonopins and a fourth of a methadone pill, posed a substantial risk of death,

and that Hall grossly deviated from a reasonable standard of care by failing to

perceive this risk and acting to avert it. Because the evidence thus justified a

finding of reckless homicide, the trial court did not err when it denied Hall's

motion for a directed verdict.

      This conclusion does not end the analysis, however. Hall's contention on

appeal is that the evidence did not support her conviction for wanton murder.

As noted above, Hall failed to preserve this issue by timely objecting to the


  Seefor example KRS 218A.1401, enhancing the penalty for drug trafficking when
  drugs are transferred to a minor, and KRS 530.064, making it an offense to involve
  a minor in illegal controlled substances activity.
                                         8
 wanton murder instruction, but she seeks review of the unpreserved error

 under the palpable error standard of RCr 10.26. Pursuant to that rule, an

unpreserved error may be deemed palpable only if it is indeed palpable, i. e.,

clear from the record, and only if it affects the defendant's substantial rights

and has resulted in manifest injustice, i.e., "the required showing is probability

of a different result [absent the error] or error 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) .

       Wanton murder, of course, is a more culpable offense than reckless

homicide with correspondingly greater proof requirements. Hall's conviction of

wanton murder required proof beyond a reasonable doubt that there was a

grave risk that Dylan would die if he ingested the methadone his adult

caretakers furnished him, and that Hall knew of but consciously disregarded

that risk under circumstances manifesting extreme indifference to human life.

KRS 507 .020; KRS 501 .020(3) . As noted above, however, the Commonwealth

failed to adduce evidence tending to establish the degree of risk the methadone

posed in this case, as required by Lofthouse , and we decline to presume, even

in the case of a child, that it posed a grave risk of death.

      Hall's statement, moreover, does not indicate that she recognized but

disregarded such a risk. Although, as the Commonwealth notes, Hall did state

that she accepted Watson's invitation to spend the night "against my better

judgment," that statement hardly amounts to evidence that she perceived a

grave risk of death . On the contrary, Hall apparently did not anticipate that
Dylan would ingest more than the "line" of methadone, and the only concern

reflected in Hall's statement about his ingesting an additional amount was that

it would render him unfit for school the next day. While it is appalling, of

course, that a parent would allow her child to ingest methadone, the murder

statute, KRS 507.020, applies to parents no differently than to anyone else .

The proof that statute requires was not presented in this case, and no rational

juror could have found otherwise . Accordingly, we agree with Hall that the trial

court erred by instructing the jury on wanton murder.

      Was the error palpable? We are convinced that it was, for both Powell

and Lofthouse were controlling law by the time of Hall's January 2007 trial,

and those cases should have made it clear that the Commonwealth had fallen

well short of its burden of proving a grave risk that Hall consciously

disregarded. Hall's murder conviction was, thus, manifestly unjust and

implicates her fundamental right to due process. Miller v. Commonwealth, 77

S .W.3d 566 (Ky. 2002) (noting that the Commonwealth's burden of proof is

grounded in the Due Process Clause) .

      Hoping to avoid this result, the Commonwealth argues that even if Hall

could not be found aggravatedly wanton for acquiescing in Dylan's use of

methadone, she could still be found aggravatedly wanton for failing to take

more appropriate steps to save him once she realized that he was in acute

distress. Hall was charged, however, with causing Dylan's death "by permitting

him to obtain controlled substances and by permitting him to use controlled

substances," not by failing to rescue him. Obviously, the charge may not be

                                        10
expanded on appeal, and in any event there was no proof that prompter

emergency treatment would have made a difference .

       Because we are reversing Hall's murder conviction for lack ofevidence,

the reversal is in effect an acquittal on the murder charge . Under the state and

federal double jeopardy clauses, therefore, Hall may not be retried for murder.

McGinnis v. Wine, 959 S .W .2d 437 (Ky. 1998) . As noted, however, Hall was

also charged with the lesser-included offenses of second-degree manslaughter

and reckless homicide . Where a conviction is reversed for insufficient evidence,

the defendant may be retried on a lesser-included offense provided that at the

first trial there was an instruction on the lesser offense and further provided

that the evidence at the first trial was sufficient to support a conviction for that

offense . Combs v. Commonwealth , 198 S .W.3d 574 (Ky. 2006) ; Ex parte

Granger, 850 S .W .2d 513 (Tex . Crim. App . 1993) ; Beverly v . Jones , 854 F .2d

412 (11 th Cir. 1988) . In discussing the sufficiency of the evidence, we have

already determined that a reckless homicide instruction was justified, and so

Hall may be retried for that offense . It remains to consider whether she may

also be retried for second-degree manslaughter .

      To support the second-degree manslaughter instruction, the evidence at

the first trial had to justify a finding that Hall wantonly caused Dylan's death .

KRS 507 .040 . A person acts wantonly with respect to a result or 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 .

 KRS 501 .020(3) . As discussed above, although the Commonwealth failed to

 present evidence tending to establish the magnitude of the risk posed by the

 methadone Dylan ingested, a reasonable person would have recognized that

 supplying a thirteen-year-old child with two Klonopin pills and a "bunch" of ten

 milligram methadone pills posed a substantial and unjustifiable risk of death.

 There was no evidence, however, either direct or circumstantial, that Hall

 perceived that risk and consciously disregarded it. The evidence indicates only

 that she perceived a risk that Dylan would not be awake in time for school in

 the morning. Although her unreasonable failure to perceive the more serious

risk subjects Hall to a reckless homicide prosecution, it is not enough to

support a finding of second-degree manslaughter. This result may seem

insufficient given the tragic consequences of Hall's conduct, but as Lofthouse

and Powell make clear, it is the result dictated by the Penal Code's homicide

scheme . Accordingly, retrial of the alleged second-degree manslaughter offense

is also barred on remand.

II. Hall Did Not Establish That The Recording Of Her Interview With The
Investigating Detective Should Have Been Redacted.

 A. The Trial Court Did Not Err By Refusing To Redact Statements The
Detective Attributed To Hall's Co-Defendants.

      Having determined that Hall's murder conviction must be reversed and

the case remanded, we address Hall's other allegations of error only to the

extent that they raise issues apt to bear on a new trial. Hall contends that the


                                       12
 trial court erred by failing to require that certain portions of her interview with

Detective Gibbs be redacted. During the interview, the Detective challenged

Hall's statements several times by confronting her with contrary statements

Land and Watson had purportedly given him . For example, Hall initially told

the Detective that Land had given her one of his methadone pills. The

Detective then asked, "Are you sure? He told me you bought it off him." Hall

then corrected herself, admitted that she had purchased a pill for $6, and

claimed that she crushed the pill and intravenously ingested a portion of it.

Watson, she stated, had crushed another pill and. had divided it into the

"lines," one of which Dylan ingested . The Detective said, "According to Jim,

okay, according to Jim's statement that he gave me, you bought a methadone,

you all split it up, did four lines off of it. And that you all four did a line, Dylan

included ." Hall insisted that Watson had prepared the "lines" from a second

pill, and when she further insisted that she only reluctantly acquiesced in

Watson and Land's giving one of the "lines" to Dylan, the Detective responded

with, "But Jim says you gave him permission ." Hall contends that these and

several other references to statements Watson and Land purportedly made to

the Detective amounted to testimonial hearsay and so, because she did not

have an opportunity to cross-examine Watson and Land, that they violated her

confrontation right under the Sixth Amendment to the United States

Constitution as recently interpreted by the United States Supreme Court in
 Crawford v. Washington , 541. U.S . 36 (2004) and Davis v . Washington , 547

 U.S . 813 (2006) . 2 We disagree.

        As Hall correctly notes, in Crawford and Davis the Supreme Court held

 that the Confrontation Clause bars the admission into evidence of testimonial

 hearsay "unless [the declarant] was unavailable to testify, and the defendant

had had a prior opportunity for cross-examination." Davis v. Washington , 547

U.S. at 813 (quoting from Crawford v. Washington, supra) . The bar applies

regardless of whether the evidence would otherwise be admissible pursuant to

an exception to the hearsay rule. In Davis, the Court noted that statements

made in the course of police interrogation

              are testimonial when the circumstances objectively
              indicate that there is no . . . ongoing emergency, and
              that the primary purpose of the interrogation is to
              establish or prove past events potentially relevant to
              later criminal prosecution.

547 U.S . at 813 . There is little doubt that the statements attributed to Land

and Watson satisfy that portion of the Crawford rule.

       The Commonwealth contends, however, that the statements are not

hearsay, and thus do not implicate the Confrontation Clause, because they

were not introduced for their truth but rather to supply context for Hall's

statements . The Commonwealth notes that police interrogators frequently

confront suspects with supposed statements by victims, witnesses, or co-


2 Hall also cites Bruton v. United States, 391 U .S. 123 (1968), in support of her
Confrontation Clause claim. Bruton , however, addresses the slightly, but
significantly, different situation where a non-testifying co-defendant's extrajudicial
statement is being introduced against the co-defendant, not, as here, against a
defendant being tried separately . See Lee v. Illinois, 476 U.S . 530 (1986) . Crawford
and Davis are the cases applicable to Hall's situation .
                                             14
 defendants, and that the point of these challenges is not the truth of the

 supposed statement, which may indeed be a fabrication, but rather the

response elicited from the suspect. Because the Detective's purported quotes

were not .introduced for the truth of what Land and Watson purportedly said,

but rather to provide context for Hall's statements and admissions, the

Commonwealth maintains that permitting the jury to hear the unredacted

interview did not violate Crawford and Davis. We agree.

      Although this is an issue of first impression in Kentucky, we recently

addressed a very similar issue in Turner v . Commonwealth, 248 S .W .3d 543

(Ky. 2008) . Turner involved a tape-recorded transaction between a confidential

informant and the defendant, an alleged seller of illegal drugs . In addition to

incriminating statements by the defendant, the recording included statements

by the informant, who did not appear at trial. The defendant argued that

because she was not able to cross-examine the informant, the admission of the

unredacted recording into evidence violated her confrontation rights under

Crawford and Davis . We held that to the extent the informant's recorded

statements provided context for those of the defendant, they served a valid,

non-hearsay purpose and so did not implicate or run afoul of the Confrontation

Clause.

      We agree with the Commonwealth that in this case, too, the Detective's

portion of Hall's interrogation, including the few statements he attributed to

Land and Watson, provides necessary context for Hall's statements. The

Detective's references to things Land and Watson purportedly said was a valid


                                       15
interrogation technique, cf. Lanham v. Commonwealth, 171 S .W .3d 14 (Ky.

2005) (noting that officers may confront a suspect with. their belief that he has

not been truthful), and the references were not used at trial for the truth of the

purported statements, but only to show why and how Hall's statement evolved

as it did . As in Turner, this was a valid, non-hearsay use of the purported

Land and Watson statements, and thus their inclusion in the evidence did not

constitute a Crawford error. This precise issue has not yet found its way into

many published opinions, but the little authority we have found from other

jurisdictions is in accord . State v. Roque, 141 P.3d 368 (Ariz . 2006) ; Woods v .

Wolfe, 2008 WL 2371401 (S .D . Ohio 2008) ; State v. Mannion, 637 A.2d 452

(Me . 1994) . See also Commonwealth v. Pelletiel:, 879 N .E.2d 125 (Mass . App .

2008) (noting the widespread agreement among both federal and state courts

that the non-hearsay use of testimonial statements does not violate Crawford) .

We caution, however, that trial courts must review the challenged interrogation

to ascertain that the statements from other witnesses are limited and were a

logical part of the interrogation. Police questioning cannot be used to "back

door" statements that are otherwise inadmissible . An interrogation laced with

constant references to other witnesses' statements would not be entitled to the

"appropriate interrogation technique" deference .

      Hall did not request a jury admonition to the effect that the Land and

Watson statements were being presented not as proof that what the co-

defendants purportedly said was true, but just to explain the context of the

conversation between Detective Gibbs and Hall. We agree with the suggestions

                                         16
 in State v. Roque, supra, and Woods v . Wolfe , supra, however, that such an

 admonition is appropriate, and if requested at retrial one should be provided .

 Cf. Lanham v. Commonwealth, supra (recommending admonition in a similar

 context) .

 B . References In Hall's Statement To Her Prior Incarceration And To A
Prior Bad Act Did Not Amount To Palpable Error.

        Hall also contends that several references in her statement to the fact

that she had recently spent thirteen days in jail should have been redacted as

well as references to an episode two weeks prior to Dylan's death when he was

removed from school for being under the influence of alcohol. These

references, she maintains, constitute evidence of a prior crime and a prior bad

act which were not admissible under KRE 404(b) since they were not relevant

to any contested issue. With the exception of one of the jail references, which

was redacted, Hall concedes that this issue was not preserved by an

appropriate objection prior to or during trial. She nevertheless requests review

under the palpable error standard discussed above, i.e., a clear error on the

face of the record which probably bore on the result or which was so

fundamental as to threaten the defendant's right to due process . Martin v .

Commonwealth, supra . The alleged error here, however, does not meet this

standard . Even if the references should have been redacted (which we do not

decide) the unredacted statement did not deprive Hall of a fundamentally fair

trial, and there is no reasonable possibility, much less a probability, that

excluding the challenged references from Hall's statement would have altered

the result. Hall's statement would still have included, after all, her admission
                                        17
that she permitted Dylan to ingest methadone and to have in his possession

additional methadone pills. We decline to address the unpreserved error,

therefore, but that does not preclude Hall from seeking redaction of the jail and

drinking episode references on remand .

III. The Trial Court Did Not Err By Refusing To Instruct On Criminal
Facilitation .

       Hall next contends that the trial court erred when it refused to instruct.

the jury on facilitation of the primary and lesser--included offenses. She notes

the general rule that the court should instruct on the whole law of the case,

Gabow v . Commonwealth, 34 S .W.3d 63 (Ky . 2000), and argues that a rational

juror could have believed that Land and Watson committed the principal

offense by supplying Dylan with the methadone intending or knowing that he

would use it, and that she, Hall, did no more than facilitate the principal

offense by "standing by and allowing it to happen ."

      Criminal facilitation is defined in KRS 506.080:

             A person is guilty of criminal facilitation when, acting
             with knowledge that another person is committing or
             intends to commit a crime, he engages in conduct
             which knowingly provides such person with means or
             opportunity for the commission of the crime and which
             in fact aids such person to commit the crime.

Facilitation is distinguished from complicity, its close cousin, by the different

mental states they involve. Complicity requires a mens rea as culpable as that

required for conviction of the principal offense, Tharp v . Commonwealth , 40

S.W .3d 356 (Ky. 2000) . Facilitation, on the other hand, may be found only

where the defendant, knowing that a crime was afoot or was intended, aided


                                        18
 the principal actor but nevertheless was "wholly indifferent to the actual

 completion of the crime." Commonwealth v. Nourse, 177 S .W .3d 691, 700 (Ky.

 2005) (citing Perdue v. Commonwealth, 916 S.W.2d 148 (Ky. 1995)
                                                            ,(internal

quotation marks omitted) . A facilitation instruction is not appropriate unless

the evidence supports such a finding of knowing but disinterested aid. . Monroe

v. Commonwealth, 244 S .W.3d 69 (Ky. 2008) .

       The trial court denied Hall's request for facilitation instructions because

it believed that her active participation in the drug abuse that went on at the

Hall/Watson residence precluded a finding that she was "wholly indifferent" to

whether Dylan became involved . We agree. Indeed, Hall admits in her

statement that she encouraged Dylan's participation not only by her example,

but by giving him a fifty-dollar bill to fashion into a "snorting" straw. This fact

belies her claim that she "stood by and did nothing" while Land and Watson

gave drugs to her son. No rational juror could have found otherwise. The trial

court, accordingly, did not err by refusing to instruct on facilitation .

IV. Alleged Errors Not Apt To Bear On A Retrial Are Not To Be Reviewed.

      Finally, Hall contends that the trial court erred by refusing to strike a

juror for cause and by pressuring the jury to reach a sentencing decision.

Because these issues are not apt to recur at a retrial, we need not address

them here. Bell v. Commonwealth, 245 S .W.3d 738 (Ky. 2008) .

                                   CONCLUSION

      In sum, we agree with Hall that the Commonwealth failed to prove that

she wantonly murdered her son . The state proved that Hall participated in

                                         19
 supplying her son with methadone and that methadone killed him, but. i t failed

to prove the wanton murder elements that Hall was aware of but disregarded a

grave risk that the amount of methadone Dylan was taking was apt to prove

fatal . Absent this proof, Hall's murder conviction, must be reversed . On

remand, Hall may be retried for the lesser offense of reckless homicide . At a

retrial, Hall's interview with Detective Gibbs may be introduced without

redacting the statements the Detective attributed to Hall's co-defendants, but

upon Hall's request the jury should be admonished to consider those

statements not for their truth but only as part of the interview's context .

Accordingly, we reverse the March 9, 2007 Judgment of the Wolfe Circuit Court

and remand for further proceedings consistent with this opinion.

      All sitting. Minton, C .J . ; Abramson, Cunningham, Noble, Schroder, and

Venters, JJ., concur. Scott, J., dissents .

      SCOTT, JUSTICE, DISSENTING : I must respectfully dissent from my

esteemed colleagues' reversal of Appellant's wanton murder conviction as it

ignores the abundant circumstantial evidence in this disturbing case-a.

mother involving her 13-year-old son in a deadly drug binge . It is well settled

that circumstantial evidence alone is sufficient for a criminal conviction "as

long as the evidence taken as a whole shows that it was    not clearly

unreasonable   for the jury to find guilt." Lawson v. Commonwealth, 53 S .W .3d.

534, 548 (Ky. 2001) (emphasis added) ; see also Schrimsher v. Commonwealth,

190 S .W.3d. 318, 328 (Ky. 2006) ; Bray v. Commonwealth, 177 S.W.3d 741, 748

(Ky . 2005) . Plainly, a parent has an inescapable legal duty to protect their

                                        20
 child from physical injury . Lane v . Commonwealth,    956 S .W .2d 874, 875-76

 (Ky. 1997) . Here, the jury found sufficient circumstantial evidence to find

 Appellant guilty beyond a reasonable doubt of murder under circumstances

 rising to the level of wantonness and in my opinion the verdict. was clearly not

 unreasonable.

     I. THE COMMONWEALTH'S PROOF SUPPORTED A CONVICTION OF
                        WANTON MURDER

        When a defendant participates in a felony, "dangerousness with respect

to the underlying felony can be derived either from the nature of the felony or

the method of its perpetration or attempted perpetration ." Graves v.

Commonwealth , 17 S .W .3d   858, 863 (Ky. 2000) .   Thus, the circumstances

surrounding a felony crime can be so dangerous as to satisfy the element of

aggravated wantonness necessary for a conviction of wanton murder.       Id.    We

can even disregard the accused's lack of awareness of the grave risk and the

foreseeability of harm created by his conduct, as we did in drunk driving cases

like Hamilton v . Commonwealth,    560 S.W .2d 539 (Ky . 1977) .

      As Professor Abramson observes with respect to this Court's holding in

Hamilton , wantonness "applied regardless of whether the defendant was either

too drunk to realize the seriousness of the risk of driving while intoxicated at

the time his conduct caused a result, or too absent-minded or feeble-minded.

The risk which the defendant consciously disregarded occurred when he

started to drive under the influence ." Leslie W. Abramson, 10 Kentucky

Practice, Substantive Criminal Law, § 3:5 (2nd ed. 2000) . Here, it started when

she took her minor son to the drug party.
                                        21
       It is common knowledge that a child's body is more physically vulnerable

 to drugs than an adult's, evidenced generally by the heightened regulation of

 controlled substances with regards to children (e .g. differing dosage

 requirements for children and adults and restrictions or prohibitions of certain

 powerful substances for children) . We also know that children lack the

 emotional maturity and deliberative reasoning skills that are formed by the life

experience of adults . Children, therefore, are more likely to be be unaware of

or consciously disregard the potential dangers of drug abuse-e .g. the potential

deadliness posed by even a single drug, the deadly interactions between

multiple drugs, the potential allergic reactions, the effect of drugs on known or

unknown pre-existing medical conditions, etc. These considerations would be

racing through the mind of any reasonable parent who knows that his or her

child is in a situation involving drug abuse . This is why the Appellant's

dereliction of her legal duty to protect her child is so damning in this instance .

Not only did she disregard the risks that drugs pose to children, but she

approved of her son's use.

      While it is true that Lofthouse v . Commonwealth, 13 S.W .3d 236 (Ky.

2000) requires the Commonwealth to adduce evidence tending to establish the

degree of risk a drug posed to the victim, such evidence was presented here.

Kentucky's Associate Chief Medical Examiner testified that an overdose of

Methadone is deadly and that "a person who takes too much of it . . . goes to

sleep, their breathing gets shallower, then they finally stop breathing and die ."

TR at 440 . Given the evidence, the jury obviously concluded that this wasn't

                                        22
the Appellant's first go-round with drugs-that she knew of their potential

effect . Regardless, Lofthouse is distinguishable as involving an adult victim,

whereas, here, Dylan was an adolescent weighing 92 pounds . A juror could

reasonably infer from the evidence that Methadone was lethal to Dylan in even

smaller doses than would kill an adult.

      Plainly, I believe that sufficient evidence was presented to show that

Appellant knowingly brought her 13-year-old son to a drug binge; that she gave

her minor son drugs ; that, instead of executing her legal duties as a parent,

she became intoxicated with Marijuana, Oxycontin, and Methadone ; that she

assented to and gave her minor son the instruments for ingesting crushed

Methadone with the adults ; that she did not remove additional Methadone from

her minor son's possession ; and that she went back to sleep when presented

with evidence that her minor son was in a drug induced sleep from which he

would not wake . When viewed within the context of parental common sense

concerning the vulnerability of children to drug abuse, there was sufficient

evidence of wantonness for the jury to reasonably find Appellant guilty of

wanton murder .

      1, therefore, respectfully dissent, and would affirm this conviction .
COUNSEL FOR APPELLANT:

Shannon Dupree
Department of Public Advocacy
Assistant Public Advocacy
Suite 301, 100 Fair Oaks Lane
Frankfort, KY 40601


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

Heather M. Fryman
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
