Concurring.
Although I concur in the result reached by the majority, I disagree with its conclusion that “Wolfe’s participation in the reenactment of the crime during the prosecutor’s closing argument, whether planned or unplanned, was highly improper.”1 In my opinion, the latitude we grant to attorneys in closing argument2 should allow demonstrations that illustrate evidence previously introduced at trial or reasonable inferences drawn from that evidence regardless of whether the prosecution’s complaining witness participates in the demonstration. While I recognize that closing argument demonstrations which do not illustrate prior evidence and instead attempt to introduce new demonstrative evidence are improper, the demonstration in this case clearly illustrated rather than presented evidence. I believe trial courts occupy the best position to assess whether demonstrations risk prejudice, and this Court should review their determinations for abuse of discretion. Although I believe the trial court in this case acted within its discretion when it admonished the jury to disregard this demonstration, I see nothing inherently improper about it, and I fear that today’s majority may discourage the use of permissible demonstration during closing argument.
Perhaps my most basic concern with the majority opinion is that it, by failing to outline any criteria upon which trial courts can assess the propriety of closing argument demonstrations, appears to condemn all such demonstrations, or at least those in which the complaining witness participates. I believe this represents a departure from existing case law in which this Court and its predecessor have found the dispositive question to be whether the demonstration adhered to trial evidence and reasonable inferences therefrom.
In Cupp v. Commonwealth,3 the Court emphasized the order of proceedings when it found improper the Commonwealth’s displaying of the scarred victim during closing argument: “The Criminal Code, in order to procure fair trials, prescribes the mode and order in which testimony may be given to jury, and courts cannot afford to permit a departure therefrom when the object and effect is to give to either party an undue advantage of the other.”4 Twenty-five years later, in Balee v. Commonwealth,5 the Court referenced the Cupp decision and again emphasized the need to separate argument from evidence:
*883In his closing argument to the jury the Commonwealth attorney called the defendant and had the defendant to stand up before the jury by the side of the prosecuting witness, Horace Kelley, to which the defendant at the time objected; and his objection being overruled by the court, he excepted. It is insisted that this was erroneous and very prejudicial to the defendant for the very reason that when they were not standing together, it was not easy to say which was the larger of the two. The Code of Practice provides that the Commonwealth attorney after the statement of the case against the defendant must then offer the evidence in support of the indictment .... It is important to the defendant that all the evidence which is to be offered against him shall be offered before the argument of his counsel is made; and it may be very prejudicial to him to allow any additional evidence after his counsel has argued his case to the jury on the evidence that is before the jury. In Cupp v. Com., after the argument to the jury for the defendant had closed and that attorney for the Commonwealth had begun his argument, he had the prosecutor to come around where he was and when he had done so, the attorney put his hands on the face of the prosecutor and said to the jury, “Gentlemen, look at the scar on his face. Is that worth only $50?” ....
The error in this case was more prejudicial and serious than in the case cited;
for here perhaps the most convincing evidence was given after the argument of his case by his counsel to the jury, and the whole question was one of identity.6
In Huber & Huber Motor Express v. Martin’s Administrator,7 a case that involves an issue factually similar to,8 and interprets,9 the authority cited by the majority, Stacy v. Williams,10 the Court emphasized the trial court’s prime position to assess whether the demonstration prejudiced the defense: “The court knew whether his client had already exhibited it to the jury and whether his counsel calling for him and having him re-expose it was only a repetition of evidence already introduced.” 11
In Ramey v. Ruth,12 the Court saw nothing improper in trial counsel’s illustration of the evidence in an automobile accident case with model cars and a blackboard with the accident scene drawn upon it because his demonstration was based in the record:
[Djuring his final argument to the jury counsel for appellees produced a blackboard of his own which had theretofore not been used during the trial, placed toy automobiles upon the board (which contained a drawing of the curve in the roadway depicting the scene of the accident) and used them during the course of his argument. It was claimed that it wholly misrepresented the evidence in the case. However, there was *884no showing made either in the record or in the brief for appellants in what manner counsel allegedly departed from the evidence which had been given and any reasonable inferences which might be drawn therefrom.... [T]his was a magnetized board along which the automobiles could be moved easily and thus counsel could give his interpretation of what actually happened at the scene of the accident. We find nothing that shows he departed from the usual practice of using a blackboard or other device to help illustrate an argument. The board may have been novel and improved, but we find nothing wrong so long as counsel adhered to the evidence and reasonable inferences. If he departed from that course, it does not appear of record.13
In Smith v. Commonwealth,14 we found no error when the Commonwealth, during its opening argument, conducted a demonstration involving a firearm which was consistent with the evidence later admitted: “The opening statement by the prosecution, ... and the gun demonstration included in it, only directed the attention of the jury to the evidence which he expected to prove through the testimony. The explanation of the incident and the demonstration were ultimately supported by the testimony ....” 15 And, in Wager v. Commonwealth,16 we again emphasized that permissible closing argument demonstrations must relate to evidence already in the record when we reversed the appellant’s conviction:
The Commonwealth’s attorney told the jury that he had driven past an old fence on the way to the courthouse, and watched a man pull a post from the ground. As the post had brambles growing on it, one could not avoid being scratched removing the post in this way. This was in reference to Matthews’ claim that the suspicious scratches found on his chest were caused by brambles on fence posts and not fingernails. Not only did the Commonwealth’s attorney discuss the brambly fence post, but he brought a portion of the bramble-covered fencepost into the courtroom as a demonstration to the jury. Although prosecutors have been consistently granted wide latitude by this court in opening and closing arguments, certain behavior exceeds the bounds of what is acceptable and enters the realm of prejudicial error. The Commonwealth’s attorney went beyond the evidence presented, and pursued another agenda, quite apart from the legal constraints of the case at hand. Although the Commonwealth claims that the fencepost was merely a reasonable inference drawn from the evidence, we do not agree.... 17
I would also note that courts in other jurisdictions have found no abuse of discretion when trial courts have permitted closing argument demonstrations supported by the evidence,18 and have applied the *885same standard when the complaining witness or victim participates in the demonstration.19
I can find no warrant in the majority opinion for adopting a blanket rule excluding complaining witnesses from participating in otherwise permissible closing argument demonstrations, and I believe our previous opinions have found error in victim-participation closing argument demonstration cases not because of who participated in the demonstrations, but because those demonstrations strayed from the record and thereby introduced new evidence. Trial courts should always scrutinize demonstrations during closing argument to prevent the introduction of new evidence, and I believe that they can avoid prejudice — regardless of who participates in the demonstration — by limiting demonstrations during closing arguments to those that illustrate the evidence or reasonable inferences therefrom Here, the demonstration conducted during closing argument mirrored exactly the sworn testimony given by the complaining witness, and I see nothing inherently improper about it.
GRAVES, J., joins this concurring opinion.
. Majority Opinion at 59 S.W.3d 878-880 (2001).
. See Bowling v. Commonwealth, Ky., 873 S.W.2d 175, 178-179 (1993); Williams v. Commonwealth, Ky., 644 S.W.2d 335, 338 (1982).
. 87 Ky. 35, 7 S.W. 405 (1888).
. Id. at 407.
. 153 Ky. 558, 156 S.W. 147 (1913).
. Id. at 560-561, 156 S.W. 147 (citations omitted and emphasis added).
. 265 Ky. 228, 96 S.W.2d 595 (1936).
. See Id. at 234, 96 S.W.2d 595 ("One of the statements of ... counsel to which they objected reads: 'Come around, John, and roll up your pant leg, and show the jury your leg.' Martin, thereupon, as the record discloses, appeared before the jury, rolled up his pant leg and exposed to the view of the jury his injured leg.”).
. Id. at 235, 96 S.W.2d 595.
. 253 Ky. 353, 69 S.W.2d 697 (1934).
. Huber & Huber Motor Express v. Martin's Administrator, supra note 7 at 598.
. Ky., 376 S.W.2d 292 (1964).
. Id. at 294.
. Ky., 734 S.W.2d 437 (1987).
. Id. at 448 (emphasis added).
. Ky., 751 S.W.2d 28 (1988).
. Id. at 30-31 (citation omitted and emphasis added).
. See State v. Ash, 526 N.W.2d 473, 483 (N.D.1995) ("The demonstration was nothing more than a vivid visual summarization of the State's view of a large body of evidence that depicted an execution-style killing.”); Gilbert v. State, 951 P.2d 98 (Okla.Crim.App.1997) (demonstration with firearm); State v. Dowds, 253 Ill.App.3d 955, 192 Ill.Dec. 723, 625 N.E.2d 878, 878-880 (1993) ("[T]he prosecutor’s demonstration merely showed the jury what seven beers looked like when poured into a container, testimony the jury had already heard from defendant about how he *885had poured seven beers into a 'different container’ — namely, himself.”); State v. Bush, 103 Ill.App.3d 5, 58 Ill.Dec. 482, 430 N.E.2d 514, 521-522 (1981):
During the State's closing argument, the prosecutor conducted a physical demonstration using the same model to show the position of the victim’s body. This demonstration was based on a photographic exhibit introduced at trial and was apparently intended to demonstrate that the defendant could not have turned over Ms. Durbin’s body as he had testified he had done....
Admission of demonstrative evidence is a matter within the discretion of the trial court. In the instant case we find no abuse of discretion because [the] demonstration ][was] based on evidence admitted at trial.
(citations omitted and emphasis added); State v. Kroll, 87 Wash.2d 829, 558 P.2d 173, 185 (1976):
In final argument the State was allowed to conduct a demonstration in which one man sat astride another, the purpose of which was to demonstrate how the defendant might have sat on the victim, holding her arms and leaving the marks found thereon. The court restricted the matter to a simple showing of position, and cautioned the jury that the demonstration was not evidence. The evidence from the pathologist indicated that the defendant’s boots could have caused the marks as indicated. The demonstration merely showed the jury the manner in which it could have been physically accomplished.
Argument of counsel is limited to the evidence and to fair and reasonable deductions to be drawn therefrom. We find no abuse of discretion in allowing the prosecutor to demonstrate a reasonable inference from the evidence.
(citations omitted and emphasis added). Collins v. State, 561 P.2d 1373, 1380-1381 (Okla.Crim.App.1977) (approving demonstration and relying extensively upon a turn-of-the-last-century published, but "not to be officially reported,” see CR 76.28(4)(c), Kentucky decision — Herron v. Commonwealth, 23 Ky. L.Rptr. 782, 64 S.W. 432 (1901)).
. See State v. Madry, 12 Wash.App. 178, 529 P.2d 463, 466 (1974).