Concurring in Part and Dissenting in Part.
While I agree with the majority on the issues of “alleged juror misconduct” and “unpreserved issues,” I respectively dissent on the sufficiency of the evidence to support the “wanton murder” charges.
“In our dedication to severely punish... drivers who kill, a dedication which I share, we have grown indifferent to the difference between murder and manslaughter, an indifference which I do not share.” Bush v. Commonwealth, 839 S.W.2d 550, 558 (Ky.1992). (Leibson, J., dissenting). “I concede that fatal carelessness in the operation of a motor vehicle calls for stern punishment, but murder is something else. There simply is a difference in culpability between committing an act that endangers people whose presence is known and an act that endangers people whose presence should be anticipated, but in fact is not known.” Hamilton v. Commonwealth, 560 S.W.2d 539, 544 (Ky.1977), (Palmore, C.J., dissenting).
In this case, Demond Brown “[d]oes not fit the description of [a] wanton murderer absent further circumstances indicating a heedless disregard for victims he is consciously aware of.” Bush, supra, (Leib-*433son, J., dissenting). “By virtue of the... opinion in this case... the distinction between wanton murder and reckless homicide will be lost.” Estep v. Commonwealth, 957 S.W.2d 191, 194 (Ky.1997) (Lambert, C.J., dissenting). Why?
Around 10:00 p.m., on January 15, 2002, 19 year old Demond Brown (Brown) was returning home with his younger brother and girlfriend. He had just picked up his girlfriend, Latida Leavell, from her job at Meritor in Hopkinsville, Kentucky, where he also worked. Leaving the Meritor parking lot, he pulled out on Pembroke road, which is a four-lane highway with a speed limit of 55 miles per horn’. He then traveled six-tenths of a mile from the parking lot to the intersection of Pembroke and Martin Luther King Jr. Parkway (the ByPass).
Credible evidence, both from witnesses, as well as the investigating officers, established his speed on Pembroke road between 60 and 65 miles per hour. Then, as he approached the intersection, he saw he had a red light. He took his foot off of the gas peddle, but then glanced over and saw what he thought was the opposing lights go yellow to red. Mistakenly believing his light would now turn green, he drove on into the intersection. In fact, his light remained red and he struck another car, killing Debra Conklin and her daughter, Megan.
The majority concedes there was no evidence introduced at trial indicating either Brown, or his passengers, ever saw Ms. Conklin’s vehicle and that the “[ijnference that Brown did not see the impending collision was reinforced by the fact that his vehicle left no skid marks on the road prior to the point of impact.” Moreover, all parties concede no drugs or alcohol were involved.
Yet, Brown was convicted of two counts of “wanton murder” and two counts of wanton endangerment, 1st degree, and was sentenced to 20 years each on the wanton murders and 1 year each on the wanton endangerments, all to run concurrently for a total of 21 years. Pursuant to KRS 489.3401(3), he will not be eligible for parole until he has served 17 years of his sentence.1 He will then be near 40 years old. Prior to this tragic event, he had a job, owned a car and was never in trouble, other than a couple of traffic tickets.
Evidence at trial suggested (but never said) Brown was racing with Michael Kay-lor (Kaylor) just prior to running the red light. Kaylor also worked at Meritor and had been Brown’s supervisor. That night, Kaylor left the factory at the same time as Brown, but never spoke to Brown.2
According to Kaylor, when he pulled out, he followed Brown down Pembroke, staying one to two car lengths behind him, traveling “about” 65 miles per hour. Again, it was six-tenths of a male from the exit at the Meritor parking lot to the intersection. This intersection had a turn lane which was four-hundred eighty feet long from its beginning up to the intersection. Once he came to the turn lane, Kaylor turned into it in preparation to turn right on the Martin Luther King Jr. by-pass, which was the way he drove home from work.
Dewayne Thomas, another Meritor employee left the parking lot at the same time (10:00 p.m.) and was immediately *434passed by both Brown and Kaylor as they exited out of the parking lot. He testified “they went by me like I was sitting still.” However, when this comment was farther explored, he acknowledged he was only 50 feet up to 50 yards from the parking lot exit and doing 35-40 miles per hour. Earlier he had indicated he was doing about 50 miles per hour when they went by him.3 Later he testified, “I seen what they were doing,” but he never said the word racing.
Brown, on the other hand, was driving a 1994 Ford Crown Victoria. In fact, it was a former city police cruiser which had actually belonged to Detective Mayse, the police re-constructionist who testified in the case. Detective Mayse admitted it had the special engine found in police cars. It doesn’t take a rocket scientist to know a police cruiser is capable of doing much more than 60-65 miles per hour in six-tenths of a mile (from the parking lot to the intersection). Which poses the question, were Brown and Kaylor really racing? Or, if they were, they obviously quit before Kaylor exited to the turn lane and Brown approached the light at the intersection. The turning lane started 480 feet prior to the intersection; at 88 feet per second, at 60 miles per hour, that’s five and one-half seconds (51/2) from the start of the turn lane to the intersection.
However, for purposes of consideration of this case, let’s assume they were doing some “undefined form of restrained racing” at 60-65 miles per hour on a 55 mile per hour four-lane, prior to the time Kay-lor withdrew and exited to the turn lane, for his right hand turn.
In contrast to the “suggestion of racing” as the cause of the collision, the Common: wealth also introduced evidence that Brown’s vehicle had two T.V. screens mounted in the front. One was cut into a hole where the old glove box would normally be, while the other was suspended near the floor from the gearshift. These were very small screen T.V.’s but only one worked. There was no evidence that the T.V. had any capability of playing video movies or accessing T.V. signals.
Calvin Quick, another Meritor employee and a passenger in the car driven by Dewayne Thomas, testified that when he walked by Brown’s car in the parking lot, the T.V. was playing. Brown agreed and testified he and his brother were playing with their Playstation on the T.V. screen while they were waiting in the parking lot for Laticia, his girlfriend. Brown, his brother and Laticia were clear that the one working T.V. screen was not in use when the collision occurred.
Mr. Quick, who Brown passed coming out of the parking lot, at first believed it was in use when he was passed, but later acknowledged that the windows were tinted on Brown’s vehicle and he could have just seen a blank blue screen. However, one should recall that Mr. Quick’s observation came at a point either 50 feet or 50 yards from the parking lot at a time when the driver of his vehicle (Thomas) indicated “they went by me like I was sitting still.” Almost six-tenths of a mile still remained to the intersection.
So what have we got? A young kid who made a terribly tragic mistake in thinking his light would turn green and ended up killing two innocent people. Something he’ll regret for the rest of his life. But is he guilty of “wanton murder” as the majority says, as opposed to being guilty of second degree manslaughter and/or reckless homicide?
*435The majority has set out the appropriate standard for reviewing questions regarding the sufficiency of the evidence. All fair and reasonable inferences are to be drawn in the Commonwealth’s favor. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). But, what inferences are fair and reasonable?
After traveling six-tenths of a mile from the Meritor parking lot, Brown approached the red light at the intersection of Pembroke and Martin Luther King Jr. bypass. At this time, or prior thereto, someone in the vehicle may have, or may not have, been looking at, or playing with, the T.V. screen. Brown was driving, his girlfriend was sitting in the front passenger seat, and his brother was sitting in the back seat. After the accident, the Playstation was in the floor of the right front passenger compartment where his girlfriend was sitting. It may have been, or may not have been, in that location prior to the accident. This is where they were using it in the parking lot.
Brown was driving a former police cruiser with the capability to reach significant speeds in the six-tenths of a mile from the parking lot to the light at the intersection. Prior to his approach to the intersection, he may have, or may not have, been involved in “some form of undefined restrained racing” with Michael Kaylor; doing 60-65 miles per hour on a four-lane highway with a posted speed limit of 55 miles per hour. Whether he was, or was not, doing anything in this regard prior to approaching the intersection, Michael Kay-lor turned into a turn lane to make a right hand turn and that turn lane started four-hundred eighty feet prior to the intersection. As noted, a vehicle doing 60 miles per hour travels 88 feet per second.
Prior to approaching the intersection, Brown noticed that the light was red and took his foot off the gas peddle. As he testified, he then saw what he thought was the opposing light go from yellow to red, and expecting his light to turn green, he drove into the intersection. As noted by the majority, there was no evidence at trial indicating he, or even his passengers, ever saw the Conklin vehicle. The inference that this was so is reinforced by the fact his vehicle left no skid marks on the road prior to the point of impact.
The question then becomes whether Brown, under these facts and taking all reasonable inferences in favor of the Commonwealth, can be guilty of wanton murder as opposed to second degree manslaughter and/or reckless homicide? “A person is guilty of murder when:... (b) including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.” KRS 507.020. Stated in another way, can we say, on these facts, that a reasonable juror could believe beyond a reasonable doubt that Appellant’s conduct “manifested extreme indifference to human life?”
“This Court has held that a conviction of wanton murder is reserved exclusively for offenders who manifest virtually no concern for the value of human life.” Johnson v. Commonwealth, 885 S.W.2d 951, 952 (Ky.1994); Kruse v. Commonwealth, 704 S.W.2d 192 (Ky.1985); Harris v. Commonwealth, 793 S.W.2d 802 (Ky.1990); Nichols v. Commonwealth, 657 S.W.2d 932 (Ky.1983).
One would presume this reservation is based upon the severity of the potential sentence. Wanton murder is a Class A felony with a penalty of twenty years to life. Second degree manslaughter is a Class C felony with a maximum sentence of ten years. Reckless homicide, the least *436culpable of the three, has a maximum penalty of five years in the penitentiary. Moreover, pursuant to KRS 439.3401(3), Capital, Class A and B felonies are generally classified as “violent offender” offenses, subject to an 85% serve out of the sentence imposed. Class C and D felonies are not subject to this 85% serve out rule.
The majority’s logic to avoid the constraints set out in Johnson, Kruse, Harris and Nichols, supra, is contained in four sentences.
“Appellant’s conduct was substantially more than a mere traffic violation. In addition to driving at a rate exceeding the speed limit and violating the traffic signal, there was substantial evidence that Appellant was watching television rather than monitoring the traffic at the intersection and that he had attempted to ‘time’ the traffic light despite the fact that it remained red at all times during his approach. Moreover, from the testimony regarding the manner in which Appellant and Kaylor operated their vehicles and Kaylor’s unusual conduct after the collision, the jury could reasonably have inferred that Appellant and Kaylor were racing during the period immediately preceding the collision and that Appellant ran the red light to “outrun” Kaylor, not realizing that Kaylor had slowed down to turn onto the bypass. While the evidence was by no means overwhelming on these points, we cannot say as a matter of law that it was unreasonable for the jury to believe beyond a reasonable doubt that Appellant acted under circumstances manifesting extreme indifference to human life.” (Slip opinion p. 9-10).
Brown was driving at a rate exceeding the speed limit. This was a 55 mile per hour four-lane and the evidence established he was driving 60-65 miles per hour. In civil cases, we have denied “punitive damages” on accidents up to ten miles per hour over the speed limit, even when the collision occurs in the wrong lane. See Kinney v. Butcher, 131 S.W.3d 357 (Ky.App.2004). “Kinney also alleged that Butcher was traveling 55 miles per hour in a 45 mile per hour zone,...” Id. at 358. We agree with the trial court’s assessment of the circumstances of this case to the effect that traveling at a possible speed of ten miles per hour in excess of the posted speed limit and failing to complete a pass before entering a no-passing zone constitute nothing more than ordinary negligence. Were we to accept Kinney’s argument that it amounts to wanton or reckless disregard for the safety of others, it would effectively eliminate the distinction between ordinary and gross negligence in the context of automobile accidents. Nearly all auto accidents are the result of negligent conduct, though few are sufficiently reckless as to amount to gross negligence, authorizing punitive damages. We are of the opinion that punitive damages should be reserved for truly gross negligence seen in cases such as Shortridge v. Rice, 929 S.W.2d 194 (Ky.App.1996), Stewart v. Estate of Cooper, 102 S.W.3d 913 (Ky.2003) and Phelps v. Louisville Water Co., 103 S.W.3d 46 (Ky.2003) In both Shortridge and Stewart, the defendant tortfeasors were driving while Intoxicated and in Phelps, the jury was presented with eighteen instances where Louisville Water Co., misrepresented the dangerous nature of a highway condition...” Id. at 359. And who hasn’t driven ten miles per hour over the speed limit on a four-lane highway on occasion? And he did run a red light. However, running a red light is insufficient grounds to support a charge of “wanton murder.” Johnson at 952.
As to the T.V., there was absolutely no evidence in this case that Brown was watching the television on the approach to *437the intersection. There was evidence from Calvin Quick, Dewayne Thomas, and the Appellant that he had been playing the Playstation (using the T.V. screen), while waiting in the parking lot for Laticia. Quick also testified he saw it on when they passed him, which was 50 feet to 50 yards from the parking lot and six-tenths of a mile from the intersection and also at a time when he testified that Brown and Kaylor went by him “like he was sitting still.” Yet, Quick was traveling in a vehicle doing “about 85 miles per hour” at the time and 50 feet to 50 yards from the starting point (the parking lot). And, on cross-examination, he admitted he could have just seen a blue screen, since Brown’s windows were tinted and he could not say there was a picture on it. Brown and all the other occupants in the vehicle said the T.V. was off. Moreover, there was no evidence the T.V. had the capability of picking up local T.V. stations or had any video feed other than its use to play the Playstation. After the accident, the Plays-tation was in the floor in front of the passenger seat, which was Laticia’s position, not Brown’s. But that is also where his brother was sitting while they were playing the Playstation while waiting on Laticia in the parking lot.
The majority concurrently suggests, “the jury could reasonably have inferred the Appellant and Kaylor were racing during the period immediately preceding the collision and that Appellant ran the red light to ‘outrun’ Kaylor.” How does someone race a “souped up” police car on a 55 mile per hour four-lane while keeping it between 60-65 miles per hour? Not one person actually testified they were “racing” as we would understand it. Dewayne Thomas said, “I seen what they were doing,” but if they were “racing,” why wasn’t the matter clarified or raised in the evidence? Surely the Commonwealth knew the answer to the follow-up question that was never asked.
The evidence in this case fairly supports a criminal charge deserving of penitentiary time, but it is simply not sufficient to establish conduct “manifesting an extreme indifference to the value of human life,” the standard for 20 years to life.
We can say that! We should say that! And we must say that — on these facts! Never before in our jurisprudence have we subjected members of Kentucky’s families to convictions of “wanton murder” on facts as these.
Every case I have reviewed where we have upheld a “wanton murder” conviction, (or its close-equivalent, pre-penal code voluntary manslaughter) in the context of a motor vehicle collision, has involved multiple facts indicating a “high rate of speed,” “collision in the wrong lane,” “running a red light,” coupled with the additional element of intoxication, except one. Cook v. Commonwealth, 129 S.W.3d 351 (Ky.2004); (defendant intoxicated plus “high rate of speed” on “curvy road”); Love v. Commonwealth, 55 S.W.3d 816 (Ky.2001) (intoxicated, speeding 70-90 miles per hour — attempting to evade police); Estep v. Commonwealth, 957 S.W.2d 191 (Ky.1998) (zonked on drugs — head on collision in wrong lane); Renfro v. Commonwealth, 893 S.W.2d 795 (Ky.1995) overruled on other grounds (under the influence of alcohol, driving at a high rate of speed, on wrong side of road and ran a red light); Walden v. Commonwealth, 805 S.W.2d 102 (Ky.1991) overruled on other grounds (B.A. of .297 plus high rate of speed, collision across center line); Keller v. Commonwealth, 719 S.W.2d 5 (Ky.1986) (intoxicated driver ran head on into victim’s car at high rate of speed in wrong lane); Hamilton v. Commonwealth, 560 S.W.2d 539 (Ky.1977) (ran red light at high rate of speed in drunken condition).
*438The one exception was Graves v. Commonwealth, 17 S.W.3d 858 (Ky.2000). Astonishingly, Graves involved a “running gun battle” during a car chase over a bad drug deal at upwards of over 100 miles per hour through a red light, broadsiding another vehicle, killing the occupants. Even so, the “wanton murder” elements in Graves, were only held to have been satisfied under the tenets of Bennett v. Commonwealth, 978 S.W.2d 322, 326-328 (Ky.1998), a doctrine similar to “transferred intent.” “Thus viewed, the high speed chase and the exchange of gunfire were but circumstances involved in the method of ‘perpetration or attempted perpetration’ of the ongoing drug transaction (citations deleted); and that conduct provided the element of aggravated wantonness necessary to convict all three Appellants of the wanton murders...” Graves, supra, at 863. Obviously, the facts in this case do not meet the culpability level of a high speed gun battle through a red light during a failed drug deal; nor is there evidence of “criminal intent” sufficient to transfer under the standards of Bennett or Graves.
Looking next at charges of second degree manslaughter, intoxication still predominates historically as a common element. Tucker v. Commonwealth, 2003 WL 23095746 (Ky.App.) (evidence of intoxication, racing and head on collision); Commonwealth v. Mahoney, 1988-CA-001635-MR (drunk killed 27 people in a drunken stupor hitting a bus going the wrong way); Newcomb v. Commonwealth, 276 Ky. 362, 124 S.W.2d 486, 488 (1939) (pre-penal code — convicted of voluntary manslaughter — “it may be said here that the defendant, in a rattle-trap automobile, was out on a wild party on this Saturday night. All of them were intoxicated. There were four in the driver’s seat and two in the rumble”).
However, in charges of reckless homicide, you start to see more cases where intoxication was not a factor. Burchett v. Commonwealth, 98 S.W.3d 492 (Ky.2003) (ran a stop sign causing death — no direct proof of intoxication — but was reversed to exclude statements of habitual daily use of marijuana); Commonwealth v. Alexander, 5 S.W.3d 104 (Ky.1999) (police officer doing 95-100 miles per hour through intersection with emergency lights after emergency had been called off and canceled— hit and killed motorist, no alcohol or drugs involved — conviction of reckless homicide affirmed); Commonwealth v. Harrell,. 3 S.W.3d 349 (Ky.1999) (intoxicated while driving 50 miles per hour in a 35 mile per hour zone — ran red light and hit vehicle killing passenger); Commonwealth v. Runion, 873 S.W.2d 583 (Ky.App.1994) (drinking driver hit turning vehicle); Jones v. Commonwealth, 830 S.W.2d 877 (Ky.1992) (defendant, while driving under the influence of alcohol struck another vehicle injuring a fetus who died fourteen hours after delivery); Wilson v. Commonwealth, 445 S.W.2d 446 (Ky.1969) (drag racing killed motorcyclist, convicted on involuntary manslaughter and 1 year sentence. Drugs and alcohol were not involved). Rouse v. Commonwealth, 303 S.W.2d 265, 266 (Ky.1957) (“smell of alcohol on Appellant was pretty strong after the accident”).
Moreover, the majority opinion embraces the language of KRS 507.020(l)(b), as supporting their affirmance. Yet, in reality, there is no support there as a majority of this Court, right after the enactment of KRS 507.020(l)(b), noted its intent. “[A] drivers inclination to take ‘one or more [drinks] for the road,’ increases the vehicular death rate on the highways of this Commonwealth. A majority of the members of this Court [are] of the opinion that the legislature enacted KRS 507.020(l)(b), to deter such con*439duct. The legislature is commended for taking such a giant step forward. Its actions in enacting this statute will do much to decrease vehicular highway deaths by persons operating an automobile while under the influence of intoxicants.” Hamilton v. Commonwealth, 560 S.W.2d 539, 544 (Ky.1977).
Then later, consistent with Hamilton, we put another brake on the use of “wanton murder” in vehicular homicide cases (not involving intoxicants) by our decision in Johnson, supra. In Johnson, a heavily loaded coal truck drove through a red light at an intersection on U.S. 23 in Floyd County, striking and killing the occupant of another vehicle. The speed limit on U.S. 23 was 55 miles per hour but the speed of the coal truck was undetermined. In Johnson, we said “no evidence was introduced by the Commonwealth of extreme speed or even that the Appellant was exceeding the legal speed limit. Evidence was introduced that the Appellant was not operating the coal truck under the influence of drugs or alcohol;...” Johnson at 953. Citing Hamilton and Walden, cases in which conduct involved both “extreme rates of speed” and “intoxication,” we said “there is a noted absence of these factors in the case at hand. This Court has held that a conviction of wanton murder is reserved exclusively for offenders who manifest virtually no concern for the value of human life.” Johnson at 952. If we are now going to leave this road of legal precedent, let’s do it intentionally and with knowledge we’re leaving — let’s don’t just drift off inattentively.
And while I agree “the decision as to whether the aggravated circumstances (of extreme indifference to human life and grave risk of death to another) were present is best left up to the jury to decide,” Cook v. Commonwealth, supra at 363, there are times, as in Johnson, when we have to have the courage to draw the line. Most prosecutors do not want authority to use “wanton murder” charges under circumstances such as this. However, being realists, they must respond to pressures from the public to do something about a particular case. That pressure is greatest where the “results” of the conduct are the most tragic as in this case. Thus, if we open the “flood gate” on “wanton murder” prosecutions in vehicular homicide cases where there is no evidence of intoxicants, or other terrible circumstances more akin to intentional conduct like Graves (the “running gun battle” over the failed drug deal), then prosecutors will be forced to use the charge more and more. Why should they have to stand alone in their communities, resisting the pressures of the public (and the press), when the consequences of an incident are indeed terrible, aside from questions of the degree of culpability of the participants. They look to us too — and we should not set down our burden so lightly.
That the conduct of the defendant in this case may have been “wanton” is certainly debatable; that the conduct manifested “an extreme indifference to the value of human life” is not. “To explode a barrel of gun powder in a crowded street, and kill people is murder, although the actor hopes that no such harm will be done. But to kill a man by careless riding in the same street would commonly be manslaughter.” Justice Holmes, Holmes, the Common Law p. 60. The maximum sentence for a “wanton” act of “second degree manslaughter” is 10 years, not 20 to life. “All we know who lie in jail — are that the walls are strong — and each day is like a year — a year whose days are long.” Oscar Wilde, The Ballad of Reading Jail IV, St. 1.
While we have the power, to some extent, to interpret, control, or influence, the *440boundaries of criminal conduct, we must always strive to maintain the standards of punishment at determinative levels based upon the culpability involved. If this ease stands affirmed, we have not met our obligation — we have laid it down.
For the reasons set out, I would reverse this conviction due to the insufficiency of the evidence to support the charge of “wanton murder” and would remand it to the trial court for a new trial on the charges of “second degree manslaughter” and “reckless homicide.”
. In contrast, Larry Mahoney, drove into a bus going the wrong way in a drunken stupor, killing twenty-seven people. He was sentenced to 16 years and released on probation after serving 9 years. Commonwealth v. Mahoney, 1988-CA-001635-MR.
. Everyone on the evening shift gets off at 10:00p.m.
. It would indeed be a surprise if one could reasonably accelerate to 50 miles per hour in 50 feet or even 50 yards.