¶1concurring:
¶2I concur with the majority opinion, although I feel compelled to write separately to express my view that the Truth in Sentencing issues for which we reverse Mullikan’s sentence were not properly preserved at trial. In my view, the trial court deserves credit for ably dealing with the arguments that were actually presented to it. I concur with reversing the sentence here because I believe the admission of factual details of prior crimes amounted to palpable error under Kentucky Rules of Criminal Procedure (RCr) 10.26. And I support adopting a clear rule prohibiting the admission of factual details of prior crimes under Truth in Sentencing.
¶3The majority reverses this sentence because the trial court allowed into evidence in the sentencing phase details beyond the statutory elements of prior convictions. I do not recall there being an objection raised in the trial court to the overall level of detail presented concerning prior convictions. So I believe the issue was unpre-served. But I agree with the majority *110that presenting factual details of prior crimes beyond their statutory elements should not be permitted. And such evidence amounted to palpable error because the description of Mullikan’s grasping a store clerk’s neck and choking her was quite prejudicial.
¶4The record reveals that the basis of Mullikan’s objections at trial was different from our grounds for reversing. At trial, Mullikan voiced simply an objection to Lt. Horch testifying to one specific detail: a victim’s age. And the Commonwealth responded to Lt. Horch’s testimony about the victim being sixty or seventy years old by stating that information about her age was inconsequential and that the victim was actually younger — essentially retracting the testimony about her age.
¶5In addition to objecting to evidence of the victim’s age, Mullikan raised what he termed a “hearsay objection” to Lt. Horch’s testifying about Mullikan’s prior convictions with the explanation that Lt. Horch was not the investigating officer. Lt. Horch, of course, lacked personal knowledge of the details surrounding Mullikan’s earlier case. But because the Commonwealth represented that Lt. Horch had some general knowledge of the earlier case as the supervising officer, the trial court permitted Lt. Horch to testify further but ruled that he could only testify to his general knowledge about the offenses and not to specifics like the victim’s age. Mullikan did not object further to the hearsay nature of Lt. Horch’s testimony.
¶6Although Mullikan often referred to Lt. Horch’s testimony as hearsay in his brief to this Court, the parties did not argue hearsay or any exceptions or exclusions to the hearsay rule in their briefs to this Court. Mullikan argued in his brief to this Court that Lt. Horch’s testimony was too detailed — an argument he never made to the trial court apart from the specific objection to the victim’s age.
¶7In fairness to the trial process, I believe that we are reversing on grounds never argued to the trial judge and, to a large extent, perhaps also on grounds not fully argued to this Court. In light of the actual arguments presented to the trial court and our inconsistent precedent regarding the amount of detail that may be presented in Truth in Sentencing concerning prior convictions, I cannot fault the trial court’s handling of the sentencing phase of this trial. I do agree that a new sentencing phase is necessary so that a jury can fairly determine an appropriate sentence without its judgment being clouded by factual details of prior convictions. For that reason, I concur with the majority opinion.
¶8concurring in part and dissenting in part:
¶9While I concur with the majority on the other issues, I must dissent as to the majority’s conclusion that there was no double jeopardy violation with respect to Mullikan’s convictions for first-degree wanton endangerment and third-degree terroristic threatening. Here, the defendant was convicted of both offenses for chasing Fry-man with a sword. I dissent because the majority presumes no double jeopardy violation in this case without thoroughly applying this Court’s decision in Commonwealth v. Burge, 947 S.W.2d 805 (Ky.1996). As a result, it is inconsistent with our precedent holding that convictions for both first-degree wanton endangerment and third-degree terroristic threatening of the same victim are barred under the double jeopardy clause.
¶10I agree that Burgeabandoned the “single impulse” or “same conduct”
If each statute requires proof of an additional fact which the other does not, then conviction under the two statutes in question does not violate double jeopardy. If, however, the exact same facts could prove the commission of two separate offenses, then the double jeopardy clause mandates that while a defendant may be prosecuted under both offenses, he may be convicted under only one of the statutes.3
¶11(Citation omitted) (emphasis added). Moreover, we recognized that, even though an overlap of proof does not establish a double jeopardy violation of its own accord, “an inability to point to the requirement of at least one mutually exclusive fact in existence does.” Id. at 677.
¶12Here, although the elements of first-degree wanton endangerment and third-degree terroristic threatening are different,
¶13In summation, even though there are different elements of separate offenses, if the same evidence is used to satisfy the differing elements of the separate crimes, a double jeopardy violations results — even under Burge. Because the exact same evidence had to be used to satisfy the differing elements of first-degree wanton endangerment and third-degree terroristic threatening with respect to Fryman, I dissent.
¶14. My double jeopardy analysis does not reinst-itute the "same conduct" test, which "pro*111vides that, ‘if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted,’ a second prosecution may not be had.” U.S. v. Dixon, 509 U.S. 688, 697, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (citing Grady v. Corbin, 495 U.S. 508, 510, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)). Rather, it recognizes that a thorough application of the Blockburgertest requires something more than sterile examination of statutory language.
¶15. Justice Venters was not sitting.
¶16. KRS 505.020 represents the codification of this analysis.
¶17. The Majority notes that terroristic threatening requires a threat to commit a crime while wanton endangerment does not. Conversely, wanton endangerment requires actual conduct placing others at serious risk while ter-roristic threatening requires neither actual conduct nor actual serious risk.
¶18. The Commonwealth implicitly concedes this point, as it points out that there were "separate acts regarding Kent Fields.” Interestingly, the Commonwealth ignores this issue with respect to Fryman.
¶19. While not raised by Mullikan, I question the sufficiency of the evidence to convict him for committing a terroristic threat upon Fryman, as I can find no case affirming such a convic*112tion based on non-verbal communication. In fact, in Commonwealth v. Black, 907 S.W.2d 762, 763 (Ky.1995), this Court deemed the appellant entitled to a lesser included offense instruction because "it would be reasonable for a juror to believe that appellant verbally, but not physically, threatened the detective.” (Emphasis added); But see Commonwealth v. Clemons, 734 S.W.2d 459, 462 (Ky.1987) (Vance, J., dissenting) (stating that "[t]he pointing of a firearm at another person, if it constitutes a threat, appropriately falls within the provision of K.R.S. 508.080 dealing with terroristic threatening”). I also note that the terroristic threatening charge was the subject of two questions from jury deliberations. Specifically, the jury inquired if terroristic threatening only applied to verbal threats and asked for a definition of "terroristic threatening.”