Concurring, in Part, and Dissenting, in Part:
Although I concur with the majority’s conclusion that the bifurcation of the May 28, 2006, charge of second-degree escape was unnecessary and thus harmless, I must respectfully dissent from the further conclusions that (1) there was insufficient evidence to support the fact that Appellant had been charged with a felony prior to the June 12, 2006, escape, and (2) that such a failure — in the face of the uncontested previous felony charges of May 28 and June 9, 2006 — was not harmless error, at least in view of the fact that the same jury was purposely held over to try the guilt phase of the preceding escape charge of May 28, 2006, upon which Appellant was also convicted.
Appellant, then an inmate, escaped from a Jefferson County work release program on May 28, 2006. Appellant was charged with second-degree escape, a class D felony, that same day; and a warrant was issued for his arrest. He was apprehended on June 9, 2006, after a dangerous car chase that resulted in his wrecking the stolen vehicle. Due to the injuries sustained in the accident, he was taken to the hospital and placed under guard.1 During his admission, he was belligerent and abusive and struck an emergency room technician on several occasions. Three days later, on June 12, 2006, as he was being discharged from the hospital under guard, Appellant broke away from custody and was again apprehended. A hospital security officer was hurt during the apprehension.
Thereafter, in August of 2006, Appellant was indicted by the Jefferson County Grand Jury for the eleven (11) offenses *499occurring on the three (3) dates: May 28, June 9, and June 12, 2006. The May 28th charges involved the second-degree escape charge; and the June 9th charges involved four (4) felony charges: second-degree assault on the emergency room technician, first-degree wanton endangerment for dangerous driving during the car chase, receiving stolen property over $300 for possession of the stolen car, as well as first-degree fleeing and evading police in a motor vehicle. The June 12th charges included three (3) felony charges: first-degree fleeing and evading police (as a pedestrian), third-degree assault during which the security officer at the hospital suffered injury, and second-degree escape. A subsequent grand jury indictment charged Appellant with being a first-degree persistent felony offender.
All of the charges against Appellant were tried before a Jefferson Circuit Court jury from April 2-5, 2007. The guilt phase of all the charges, excepting the May 28, 2006, initial escape charge, was completed on April 4, 2007 — the jury heard the guilt phase of the May 28, 2006, escape charge the next day, on April 5, 2007. That afternoon, the same jury completed the penalty phase of all the charges, including finding that Appellant was a persistent felony offender in the first degree.
In addition to finding Appellant guilty of the separate second-degree escape charges (May 28 and June 12, 2006), the jury found him guilty of three (3) additional felonies on June 9, 2006 — ie., first-degree wanton endangerment, receiving stolen property over $300, and fleeing or evading police in a motor vehicle. As a result, Appellant was sentenced to a term of forty (40) years, with each of the escape charges counting for ten (10) years each, each of which ran consecutive to the other and consecutive to the twenty-year sentence for the other felony charges.
On appeal, Appellant seeks two things. First, he asks that this Court reverse his convictions due to the trial court’s denial of his motions to sever the various counts according to the dates on which they were committed. Secondly, he asks that his conviction for the second-degree escape of June 12, 2006, from the hospital be reversed because he was “entitled to an instruction regarding escape in the third degree because the jury might have had a reasonable doubt that he was charged with a felony at the time he allegedly escaped ... and yet believed he was guilty of the lesser offense of escape in the third degree.” 2 As aforementioned, I agree with the majority on the issue of severance.
As to the second issue, the trial court denied the requested instruction, concluding: “under the facts and circumstances it was pretty clear that [Appellant] was in custody and it was pretty serious charges when you’re driving down the expressway at 90-plus miles per hour going the wrong way.” Moreover, evidence was introduced that the car he was driving had been stolen from a construction site in Louisville where it had been parked and locked. In addition, Officer Link testified that Appellant was handcuffed and in custody at the time he escaped from the hospital; and Officer Elder testified that he filed charges against Appellant regarding the June 9, 2006, events, which involved the dangerous car chase and wreck in the stolen vehicle.
Thus, it was clear from the evidence before the jury that at the time of his escape from custody on June 12, 2006, Appellant had been charged with a felony — in fact, several felonies, all from May *50028 and June 9, 2006.3 Even the fact of fleeing custody is an evidentiary reflection upon the seriousness of the offense for which the defendant was held.
In Shavers v. Commonwealth, 514 S.W.2d 883, 885 (Ky.1974), the appellant argued that his conviction for selling narcotics should be overturned because the Commonwealth did not put on evidence that heroin was a Schedule I or Schedule II controlled substance as required by the statute prohibiting the sell of heroin or other similarly classed drugs. The court rejected his argument, pointing out that there was no question that the drug sold was heroin. The court then acknowledged, “[hjeroin is listed in KRS 218A.050(2) as a Schedule I controlled substance and is defined as a ‘narcotic drug1 in KRS 218A.010(a).” Id. at 885. The court thus concluded that the jury was properly instructed. If nothing else, Shavers, properly reflects the view that such a “technical” error — in the face of uneontroverted facts proving the point — is harmless error. Cf. id. at 885.
“A person is guilty of escape in the second[ jdegree when he escapes from a detention facility or, being charged with or convicted of a felony, he escapes from custody.” KRS 520.030(1). A person is guilty of escape in the third degree when “he escapes from custody.” KRS 520.040(1). Escape in the second degree is a Class D felony, while escape in the third degree is a Class B misdemeanor. Thus, the only question here is whether or not Appellant had been “charged with or convicted of a felony” at the time of the escape. KRS 520.030(1).
A “felony” is defined as “an offense for which a sentence to a term of imprisonment of at least one (1) year of custody of the Department of Corrections may be imposed.” KRS 500.080(5). It is also a word used commonly in the English language, where it has been defined as a “crime, as murder, rape, or burglary, considered more serious than a misdemeanor and punishable by a stronger sentence.” WebsteRS II New College Dictionary 420 (3rd ed. 2005). Consequently, it is not a word that the American public is unfamiliar with.
Moreover, “felony” is not an instructional word that needs or receives defining through jury instructions. In fact, as a general rule, the jury is not presented with the question of whether or not the particular charge or charges existing prior to the escape are felonies but whether or not Appellant, at the time of the escape, had been charged with a designated crime. See 1 Cooper, Kentucky Instructions to Juries (Criminal) § 7.27 (4th ed. 1999) (“[TJhat at the time of his escape, the defendant had been [charged with] [convicted of] the crime of_(ID felony offense”)); 1 Cooper, Kentucky Instructions to Juries (Criminal) § 7.27 (5th ed. 2006) (“[T]hat at the time of his escape, the defendant had been [charged with] [convicted of] the crime of_ (ID felony offense”)). In the case at hand, the jury was instructed: “that at the time of his escape the defendant had been charged with certain felonies.”
Here, Appellant had been charged with (and the jury convicted him of) three (3) separate felonies from June 9, 2006, as well as the escape on May 28, 2006, for which he was charged on May 28, 2006. Moreover, it is undisputed that Appellant had been charged with four (4) felonies, *501prior to his escape on June 12, 2006. He was convicted of every one.
And why shouldn’t he have been? Officer Link testified that Appellant was handcuffed and in custody at the time of the escape on June 12, 2006. Officer Elder testified that he filed charges against Appellant regarding the events of June 9, 2006 — the night of the high-speed car chase on the freeway in the stolen vehicle and the resulting wreck. As the trial court noted, these were indeed “serious charges.” A “serious charge” to any lay person would, in most instances, call to mind a criminal charge that would result in a penitentiary sentence. One may be sent to the penitentiary only for a felony, not a misdemeanor.
“A defendant is entitled to a directed verdict, drawing all reasonable inferences in favor of the Commonwealth, only ‘if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt....’” Crossland v. Commonwealth, 291 S.W.3d 223, 235 (Ky.2009) (citing Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991)); see also Bussell v. Commonwealth, 882 S.W.2d 111, 114 (Ky.1994). Moreover, “circumstantial evidence may form the basis for a conviction so as long as the evidence is sufficient to convince a reasonable jury of guilt.” Id. (citing Davis v. Commonwealth, 147 S.W.3d 709, 729 (Ky.2004)).
The test of whether circumstantial evidence is sufficient to support proof of a fact is whether it “is sufficient to create a reasonable inference” that the fact exists. See Moody v. Commonwealth, 170 S.W.3d 393, 397 (Ky.2005) (circumstantial evidence of age of the defendant at the time of the commission of the offense); Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky.1999) (circumstantial evidence of whether sentence, or parole or probation was completed within five (5) years of a new charge for PFO purposes); Dawson v. Commonwealth, 756 S.W.2d 935, 936 (Ky.1988) (circumstances of possession sufficient proof that controlled substances were possessed for sale). The test then is “between a reasonable inference and ‘guess work’
An inference is the act performed by the jury of inferring or reaching a conclusion from facts or premises in a logical manner so as to reach a conclusion. A reasonable inference is one in accordance with reason or sound thinking and within the bounds of common sense without regard to extremes or excess. It is a process of reasoning by which a proposition is deduced as a logical consequence from other facts already proven. Guesswork, on the other hand, is the process of making a judgment without adequate information, or to conjecture, or to speculate.
Martin, 13 S.W.3d at 235.
“[A]n inference from circumstantial evidence may vary in strength according to the degree of probability reflected by it, being strong enough in one case to require a directed verdict while in another case having only enough strength to create a jury issue.” Graves v. Commonwealth, 285 S.W.3d 734 (Ky.2009) (whether a screwdriver could be a burglary tool) (citing Goss v. Personnel Bd., 456 S.W.2d 824, 826 (Ky.1970)).
Thus, given the serious nature of the charges for which Appellant was being tried, the fact that he was under guard and in handcuffs while exiting the hospital where he then fled, and the fact that Officer Elder took out charges against Appellant regarding the serious events of June 9, 2006, it was clearly not unreasonable for the jury to find “at the time of his escape [Appellant] had been charged with certain felonies,” a fact that — outside of legal arguments — is uncontested.
Thus, this Court should not find that the evidence was insufficient to support the *502charge of escape in the second degree on June 12, 2006 — an issue, which even Appellant, did not raise or believe in. Appellant only asserted that he “was entitled to an instruction regarding escape in the third[ ]degree because the jury might have had a reasonable doubt that he was charged with a felony at the time he allegedly escaped from Officer Link’s custody and believe that he was guilty of the lesser offense of escape in the third[ jdegree.” This, too, was precluded by the evidence at hand.
Nor, for the reasons noted, should the Court have addressed the issue as palpable error. “Absent extreme circumstances amounting to a substantial miscarriage of justice, an appellate court will not engage in palpable error review pursuant to RCr 10.26 unless such a request is made and briefed by the appellant.” Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky.2008) (emphasis added). As indicated, no request for insufficiency of the evidence review was made, nor was it briefed.
For the reasons stated above, I respectfully dissent from to the majority’s finding the evidence was insufficient, as well as its consequent holding that a retrial on the charge is barred by double jeopardy.
. Appellant was charged under uniform citation with first-degree wanton endangerment, first-degree fleeing and evading (in a motor vehicle), and receiving stolen property over $300, along with several misdemeanors.
. Even Appellant did not assert that the evidence was insufficient to support the charge, i.e., that he was charged with a felony at the time.
. As an aside, consider how many people, if asked, would say that “car theft” is a minor (misdemeanor) offense.