Childers v. Commonwealth

Opinion of the Court by Justice

ABRAMSON.

Debbie Childers appeals from an April 14, 2009, Judgment of the Lawrence Circuit Court convicting her of complicity to trafficking in a controlled substance in the first degree. Finding Childers to be a second-degree persistent felony offender (PFO 2), the jury enhanced her sentence from ten to twenty years’ imprisonment; and the trial court sentenced her accordingly. Childers raises three issues on appeal: (1) the trial court erred when it ruled she could not invoke Kentucky Rules of Evidence (KRE) 608(b) to inquire into the nature of confidential informant Thomas Osborne’s prior felony convictions; (2) *67the Commonwealth’s Attorney and Detective Wireman impermissibly interpreted the drug buy tape; and (3) there was insufficient evidence to support her conviction. We find no error on the first and third claims. Regarding the second claim, we find the Commonwealth’s Attorney’s comments on the tape were proper; but Wireman’s interpretations were impermissible. However, the unpreserved error is not palpable and so does not require a reversal. Accordingly, we affirm.

RELEVANT FACTS

On September 3, 2008, Detectives Justin Wireman and Neil Adams of Operation UNITE anti-drug task force were working with a confidential informant, Thomas Osborne, to make drug buys in Louisa, Kentucky. Osborne testified that on September 3rd he called Childers to “see if she could get anything (drugs).” Childers told Osborne she could get him “Oxycodone 15s” for twenty dollars apiece. Osborne and Childers made arrangements to immediately meet at a local car wash. On the way to the car wash, the detectives searched Osborne and equipped him with a wire, a recording device and $100 of photographed buy money. Because this preparation took longer than anticipated, Osborne made a second call to Childers to assure her he was on his way. In a taped conversation with the police at the police station, Childers admitted she was the one who talked with Osborne on the phone, made the arrangements and drove herself, Chad Johnson, a participant in the drug transaction, and others to the car wash.

Osborne testified that at the car wash he gave Childers the $100 of buy money and, upon receiving the money, Childers asked him “if there was a hundred dollars there.” Testimony by Detective Wireman and Osborne and the buy tape reveal Childers then handed something to Johnson. Osborne testified that Childers handed the pills to Johnson, who then gave them to Osborne. The defense argued it is not possible to discern from the tape exactly what Childers handed to Johnson and that it was actually a handful of coins. After the transaction, the police recovered from Childers the $100 buy money and, from Osborne, the five pills he received from Johnson. The Kentucky State Police Laboratory confirmed the pills were Oxyco-done.

Childers was charged with complicity to first-degree trafficking in a controlled substance and being a second-degree PFO. At the close of the Commonwealth’s case, Childers moved for a directed verdict based on insufficiency of the evidence. The trial court denied the motion. Child-ers did not present any evidence but did renew her motion for a directed verdict. The trial court again denied the motion. The jury found Childers guilty of complicity to trafficking in a controlled substance in the first degree. She received ten years for the complicity conviction, which was enhanced to twenty years because of the second-degree PFO. Childers brings this appeal as a matter of right. Ky. Const. § 110(2)(b). We begin our review with Childers’s claim that the trial court erred when it ruled she could not inquire into the nature of Osborne’s prior felony convictions.

ANALYSIS

I. The Trial Court Did Not Abuse its Discretion by Refusing Inquiry into the Nature of Osborne’s Prior Felony Convictions.

Detective Wireman, the Commonwealth’s first witness, testified about obtaining Osborne’s assistance with Operation UNITE and about his role in the September 3rd drug buy. On cross-examination, Childers sought to discredit Os*68borne by asking Detective Wireman the nature and detail of Osborne’s prior felony convictions. The questioning proceeded as follows:

Defense Counsel: You also did a Personal History and Conduct of Confidential Witness [form for Thomas Osborne], correct?
Detective Wireman: Yes, sir.
Defense Counsel: And it revealed that he had previously been convicted of several felonies, correct?
Detective Wireman: I don’t have it in front of me. I believe he did have a felony [inaudible].
Commonwealth’s Attorney: Objection.
Judge: Overruled.
Defense Counsel: And do these felonies involve crimes of dishonesty?
Detective Wireman: I can’t remember what he was actually charged with on any of them.
Commonwealth’s Attorney: Your Hon- or, can we approach?

At this point, a bench conference ensued, during which the Commonwealth’s Attorney argued that defense counsel could ask whether Osborne was a prior convicted felon but could not inquire further. Defense counsel countered he should be allowed to inquire further if the crimes were crimes of dishonesty because they would reflect on Osborne’s credibility. The trial court agreed with the Commonwealth and ruled that defense counsel could do no more than establish that Osborne was a convicted felon. Defense counsel preserved the issue for appeal by obtaining Detective Wireman’s testimony by avowal.

This Court reviews a trial court’s decision regarding the admissibility of evidence for abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky.2007). A trial court abuses its discretion when its decision is arbitrary, unreasonable, unfair or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

We conclude that the trial court did not abuse its discretion when it disallowed Childers’s inquiries into the nature of Osborne’s convictions. Childers concedes such inquiry is not permitted under KRE 609, but maintains it may be conducted under KRE 608(b). KRE 608(b) provides, in relevant part:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

However, KRE 609(a) provides:

For the purpose of reflecting upon the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record if denied by the witness, but only if the crime was punishable by death or imprisonment for one (1) year or more under the law under which the witness was convicted. The identity of the crime upon which conviction was based may not be disclosed upon cross-examination unless the witness has denied the existence of the conviction. However, a witness against whom a conviction is admitted under this provision may *69choose to disclose the identity of the crime upon which the conviction is based.

Childers argues KRE 608(b) allows questioning as to the nature and details of a witness’s prior conviction if the conviction is probative of the witness’s character for truthfulness or untruthfulness. Child-ers maintains this is true even though the conviction itself is not admissible under KRE 609. We do not agree. KRE 608(b) permits impeachment only by specific instances of conduct that have not resulted in a conviction while evidence relating to impeachment by criminal conviction is governed solely by KRE 609.

We begin our analysis by noting that the interplay between Rules 608 and 6091 is complex. See United States v. Cudlitz, 72 F.3d 992, 995 (1st Cir.1996) (“The rules governing this subject — cross-examining a criminal defendant about prior wrongs— are among the most complex and confusing in the entire law of evidence.”); Donald H. Ziegler, Harmonizing Rules 609 and 608(b) of the Federal Rules of Evidence, 2003 Utah L.Rev. 635 (2003). As there is little Kentucky law on this question, we write today to clarify and settle the issue.

This question was touched upon previously in Fields v. Commonwealth, 274 S.W.3d 375 (Ky.2008), wherein this Court held that the trial court did not abuse its discretion when it refused to allow the defendant to cross-examine two of the Commonwealth’s witnesses about their misdemeanor convictions. Fields, 274 S.W.3d at 399, 400. On appeal, the defendant admitted KRE 609(a) barred the introduction of the misdemeanor convictions, but argued that because the misdemeanor crimes bore on the credibility of the witnesses they were admissible under KRE 608(b). Id. Without delving into the relationship between KRE 609(a) and KRE 608(b), we upheld the trial court’s rulings, finding the trial court had properly exercised the discretion granted it under KRE 608(b) to determine when to admit specific instances of conduct concerning a witness’s character for truthfulness. Id. It is true that KRE 608(b) grants the trial court such discretion. However, that is a secondary question. The more fundamental question, which we did not address in Fields, is whether criminal convictions, and the conduct giving rise to them, even come within the purview of KRE 608(b). Although we have not addressed this question previously, our rules were modeled closely upon the corresponding federal rules, and so we find it helpful to consider how the federal courts have viewed this matter.

A majority of the federal Circuit Courts make a distinction between specific instances of conduct that lead to a criminal conviction and those in which there has been no conviction. The former are governed exclusively by Rule 609, the latter by Rule 608. That is, Rule 608 applies only to specific acts of conduct that have not resulted in a criminal conviction. United States v. Osazuwa, 564 F.3d 1169, 1173 (9th Cir.2009) (“Rule 608 applies only to specific instances of conduct that were not the basis of a criminal conviction. Evidence relating to a conviction ... is treated solely under Rule 609.” (emphasis added)); United States v. Lightfoot, 483 F.3d 876, 881 (8th Cir.2007) (“Rule 608(b) ... confers upon district courts discretion to permit witness-credibility questioning on specific bad acts not resulting in a *70felony conviction.” (emphasis added)); United States v. Whitmore, 359 F.3d 609, 618-20 (D.C.Cir.2004) (“Cross-examination pursuant to Fed.R.Evid. 608(b) is not confined to prior criminal convictions — they are governed by Fed.R.Evid. 609 ... Furthermore, the government’s suggestion that inquiry under Fed.R.Evid. 608(b) should be limited to a prior perjury conviction would make Fed.R.Evid. 609 superfluous. Fed.R.Evid. 608(b) allows a witness’s credibility to be attacked based on misconduct that, while not constituting a criminal conviction, nevertheless tends to show that the witness is untruthful.” (emphasis added)); United States v. Parker, 133 F.3d 322, 327 (5th Cir.1998) (“Prior bad acts that have not resulted in a conviction are admissible under 608(b) if relevant to the witness’s character for truthfulness or untruthfulness.” (emphasis added)); United States v. White, 113 F.3d 1230, 1997 WL 279972, at *5 (2d Cir. May 23, 1997) (finding the applicable rule is 608(b) “because there was no conviction in the earlier case.” (emphasis added)); United States v. Smith, 80 F.3d 1188, 1193 (7th Cir.1996) (“[T]he plain language of the rule [FRE 608(b) ] allows for cross-examination of matters ‘other than conviction of crime’ ” (emphasis added)); Mason v. Texaco, Inc., 948 F.2d 1546, 1556 (10th Cir.1991) (“Under Fed.R.Evid. 608(b), a defendant may impeach a ... witness by cross-examining him about specific instances of conduct not resulting in conviction if such conduct is probative of the witness’ character for truthfulness or untruthfulness.” (quoting United States v. Morales-Quinones, 812 F.2d 604, 613 (10th Cir.1987) (emphasis added))); United States v. Hicks, 841 F.2d 1123, 1988 WL 16940, at *1 (4th Cir. Jan.27, 1988) (stating FRE 608(b) allows impeachment of a witness by “proof of specific acts of misconduct which did not result in conviction.” (emphasis added)).

Support for this construction of Rules 608(b) and 609 can also be found in the legislative history of the Federal Rules of Evidence. The Advisory Committee Note (ACN) provides, “Particular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-examination_” Fed.R.Evid. 608 advisory committee’s note (1972) (emphasis added). The ACN also clarifies that the phrase in Rule 608(b) that is the root of much of the confusion on this issue — “other than conviction of crime as provided in Rule 609” — is not meant to bring convictions within the purview of Rule 608 or make open to question their nature and detail. Id. Rather, that phrase was included in Rule 608 as mere recognition of the fact that impeachment by conviction of a crime, which is treated in Rule 609, is an exception to the general rule excluding evidence of specific incidents for impeachment purposes. Id. These comments indicate that impeachment by conviction of a crime is to be accomplished under Rule 609, not Rule 608.

We also take note of several secondary sources that support this interpretation of Rules 608 and 609. While in no way binding on this Court, these sources are illustrative. The leading treatise Federal Practice and Procedure explicitly and repeatedly states that evidence of criminal convictions is governed solely by Rule 609.

Rule 608 does not regulate the admissibility of criminal conviction evidence, which is the subject of Rule 609 ... Subdivision (b) [of Rule 608] specifically exempts from its coverage evidence of specific instances of witness conduct in the form of criminal convictions. The admissibility of such evidence is determined by Rule 609 ... Of course, the first sentence of subdivision (b) [of Rule 608] specifically states that the admission of such evidence [convictions] is determined under Rule 609, not Rule 608.

*7128 Charles Alan Wright & James Victor Gold, Federal Practice and Procedure §§ 6111 n. 1, 6118, 6117 (1993) (emphasis added). Noted criminal law professor H. Richard Uviller has advocated for a position different than what we adopt today; and yet, he still acknowledges that Rule 608 plainly states that criminal convictions are governed by Rule 609. H. Richard Uviller, Credence, Character, and the Rules of Evidence: Seeing Through the Liar’s Tale, 42 Duke L.J. 776, 804 (1998). As he has succinctly stated, “[T]he language of Rule 608(b) appears to exclude, explicitly, instances of dishonest conduct that result in criminal convictions.” Id.

The approach taken by these federal courts is also in keeping with sound public policy and core principles of the Kentucky Rules of Evidence. Our rules of evidence acknowledge the importance of evidence relevant to a witness’s credibility but also recognize the need to protect a witness, especially a defendant who takes the stand, from having all of his or her prior criminal acts detailed for the jury. As our rules are currently interpreted, evidence of other crimes, wrongs, or acts is admissible only for specific enumerated purposes, such as proof of opportunity, plan, or accident and, in a criminal case, are admissible only when the prosecution gives the defendant pretrial notice of its intention to offer such evidence at trial. KRE 404(b) and (c). In addition, a witness may be impeached by evidence of a felony conviction;2 but the identity of the crime can be disclosed only if the witness denies the conviction or chooses to inform the jury of the identity of the crime. KRE 609(a). Further, when a witness is impeached by a prior felony conviction, the party offering the witness is entitled to an admonition. Thus, Kentucky trial judges routinely inform the jury not to consider the felony conviction for any purpose other than whatever bearing it may have on the person’s truthfulness as a witness and the weight to be given his testimony. Where the witness is the defendant, the jury is specifically admonished not to consider the prior conviction as evidence of the defendant’s guilt in the pending case. This admonition underscores a fundamental principle that the dissent fails to acknowledge, i.e., the fact of a felony conviction is, in and of itself, powerful evidence that reflects on truthfulness.

If the facts and details underlying criminal convictions were to be admissible under KRE 608(b), it would essentially provide an end-run around these rules, rendering them largely ineffective, and would greatly alter the careful manner in which our rules have heretofore provided for the use of evidence of prior crimes. If we read KRE 608(b) the way Childers proposes, a witness would be blindsided by the introduction of his prior criminal acts, a particularly harmful consequence if the defendant is on the stand. The carefully crafted pretrial notice provisions in KRE 404(c) would simply not be applicable. Also, under this reading of the rule, the prosecutor could set out numerous instances of a witness’s prior criminal conduct, always avoiding the identity and number of convictions and, thus, preventing the jury from ever knowing the witness was punished for his crimes. This “half picture” would give a skewed view of the administration of justice and, in the case of a defendant testifying, create the very real possibility that the current jury would find it easy to punish the defendant for prior conduct for which he seem*72ingly avoided any criminal consequences. A more stark illustration involves a defendant who testified on his own behalf in a previous trial, denying the charged offense, but who was nonetheless convicted and sentenced. Under Childers’s reading of the rule, the prosecution could use this very fact against the defendant in the current case as a specific instance of untruthful conduct. Pursuant to KRE 608(b), the prosecutor could establish the defendant was a convicted felon and then elicit that he had testified at his own trial denying any criminal responsibility. Without any further questioning, the present jury could (and would) conclude the defendant was untruthful.3

Because KRE 608(b) requires the conduct bear on truthfulness or untruthfulness, the dissent maintains that only a handful of crimes would qualify for admission; and, thus, we overstate the effect of allowing criminal conduct to be admitted under KRE 608. However, we find little solace in this limitation because of the likely possibility that a person will engage in conduct that bears on truthfulness in the commission of a crime that does not itself bear on truthfulness. For example, rape and murder are not crimes that bear on truthfulness; but it is not uncommon for an offender to lie to a victim in order to perpetrate rape or knowingly use a stolen gun to commit murder.

While it may seem harsh to bar inquiry into an act bearing on a witness’s truthfulness simply because it resulted in a conviction, as noted, the fact of a conviction can be more prejudicial than the fact or allegation of a criminal act that never resulted in a conviction. See, e.g., Osazuwa, 564 F.3d at 1174. The Kentucky Rules of Evidence manage this prejudice by providing careful controls for when and how a conviction may be admitted. We will not undermine these safeguards by permitting evidence of prior criminal acts to come in through the “back door” of KRE 608. Although KRE 608(b) is hardly an example of careful, clear draftsmanship, the interpretation proposed by Childers and the dissent would produce an ill-advised sea change in the admissibility of evidence of prior crimes. For the foregoing reasons, we hold that KRE 608 permits impeachment only by specific acts that have not resulted in a criminal conviction. Evidence relating to impeachment by criminal conviction is governed solely by KRE 609. To the extent Fields may be read to imply otherwise, it is overruled.

In the present case, Childers sought to impeach Osborne by cross-examining Detective Wireman on the nature of Osborne’s previous convictions. The trial court correctly sustained the Commonwealth’s Attorney’s objection to the introduction of this evidence because this evidence is not admissible under KRE 608.4 Nor is it admissible under KRE 609, which requires the cross-examiner question the witness about his own convictions. KRE 609(a). Here, defense counsel cross-examined Detective Wireman about Osborne’s convictions, which is not sanctioned by *73KRE 609.5 KRE 609; see Richardson, 674 S.W.2d at 517-18. As such, the trial court did not abuse its discretion by disallowing inquiry into the nature of Osborne’s convictions.

II. The Commonwealth’s Attorney’s Comments on the Drug Buy Tape Were Permissible and Detective Wireman’s Impermissible Interpretation of the Tape Did Not Rise to the Level of Palpable Error.

Appellant argues that both the Commonwealth’s Attorney and Detective Wire-man impermissibly interpreted the drug buy tape. In her opening statement, the prosecutor told the jury that on the tape it would hear Childers ask Osborne, “Is that a hundred?” referring to the buy money. She then told the jury, “[Y]ou have to listen for that ... you have to listen closely to hear Debbie say ... ‘Is that a hundred?’ ” During direct examination of Detective Wireman, the Commonwealth’s Attorney played the drug buy tape for the jury and then asked Detective Wireman if he had heard what Childers said on the tape. Detective Wireman responded, “She took one hundred dollars from Thomas and she said, ‘Is that a hundred?’ ” During closing arguments, the prosecutor played the video again and told the jury it would hear Childers say, “Is that a hundred?”

Although the Commonwealth’s Attorneys comments about the tape were proper comments on the evidence, Detective Wireman impermissibly interpreted the drug buy tape. However, reversal is not required because this unpreserved error did not bear upon Childers’s substantial rights or create a manifest injustice as required to satisfy our palpable error standard. RCr 10.26.

A. The Commonwealth’s Comments on the Drug Buy Tape Were Proper Comments on the Evidence.

We will reverse for prosecutorial misconduct to which the defendant did not object if the misconduct rendered the trial fundamentally unfair. Brown v. Commonwealth, 313 S.W.3d 577, 627 (Ky.2010); Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky.1987). While the prosecutor has a duty to confine his or her argument to the facts in evidence, Caretenders, Inc. v. Commonwealth, 821 S.W.2d 83, 89 (Ky.1991), the prosecutor is entitled to draw reasonable inferences from the evidence, make reasonable comment upon the evidence and make a reasonable argument in response to matters brought up by the defendant, Hunt v. Commonwealth, 466 S.W.2d 957, 959 (Ky.1971). See also Wheeler v. Commonwealth, 121 S.W.3d 173, 180 (Ky.2003). Further, a prosecutor is given wide latitude in making arguments to the jury, Williams v. Commonwealth, 644 S.W.2d 335, 338 (Ky.1982), and may “appeal to the jury with all of the power, force, and persuasiveness which his learning, skill, and experience enable him to command,” Housman v. Commonwealth, 128 Ky. 818, 110 S.W. 236 (1908).

In the present case, there was no prose-cutorial misconduct as the Commonwealth’s Attorney did no more than make *74reasonable comments on the evidence. Thomas Osborne testified that when he gave Debbie Childers the $100 buy money at the car wash she asked him “if there was a hundred dollars there.” Osborne’s testimony from recollection was permissible and constituted evidence that Childers asked whether the money he handed her was one hundred dollars. The Commonwealth’s Attorney did not exceed the bounds of propriety in commenting on this evidence in her opening statement and closing arguments.

B. Detective Wireman Impermissibly Interpreted the Drug Buy Tape.

As for Detective Wireman’s comments, the law on this issue is quite clear. While a witness is permitted to testify from recollection about events captured on tape, he may not interpret what is on the tape. Gordon v. Commonwealth, 916 S.W.2d 176, 179-80 (Ky.1995) (“As with any participant in a conversation, the informant witness was entitled to testify as to his recollection of what was said ... [I]t is apparent that the witness purported to interpret the tape recording rather than testify from his recollection. This was in error.”). When a witness interprets what is on a tape he impermissibly invades the province of the jury, which is vested with the responsibility and duty of making determinations of fact based on the evidence. Cuzick v. Commonwealth, 276 S.W.3d 260, 266-66 (Ky.2009); Gordon, 916 S.W.2d at 180 (“It is for the jury to determine as best it can what is revealed in the tape recording without embellishment or interpretation by a witness.”).

The trial court erred by allowing Detective Wireman to interpret the videotape. Though Detective Wireman was present at the drug buy, he was sitting in a car at a distance and could not hear firsthand what Childers said to Osborne. As such, his testimony was not from personal recollection. It was in response to the Commonwealth’s Attorney’s question as to what Detective Wireman heard Childers say on the tape and, thus, was improper interpretation of the tape. See, e.g., Gordon, 916 S.W.2d at 180 (finding the witness did not testify from recollection but interpreted the tape in error when, after the tape was played, the witness was asked what he said on the tape and he answered, “I said, alright, I sure thank you, Maurice.”).

While it was improper for Detective Wireman to interpret the tape, Childers did not object to him doing so, and we find the unpreserved error was not sufficient to warrant a reversal. Under RCr 10.26 we may grant relief for an unpreserved error only when the error is (1) palpable, (2) affects the substantial rights of a party, and (3) has caused a manifest injustice. Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky.2009).

In the present case, the tape itself was played for the jury several times during trial and was admitted into evidence, thus allowing the jurors numerous opportunities on their own to hear and evaluate the tape. The defense counsel pointed out in his opening statement that he had listened to the tape and never had heard “anything about a hundred. I listened to it and listened to it, but that’s for you all to make a fact finding.” Osborne testified from recollection as to all the events on the tape and the jury had sufficient opportunity to observe him, determine his credibility, and decide what weight to give his testimony. Further, there was sufficient additional evidence to support the conviction. The testimony of both detectives, Osborne, and a recorded statement by Childers showed Childers took both phone calls from Osborne, discussed with him the availability and sale of drugs, located the drugs for Osborne, arranged the transaction, drove to the meeting place, and took the $100 *75buy money from Osborne. As such, there was no manifest injustice and, hence, no palpable error.

III. There was Sufficient Evidence for a Conviction of Complicity to Trafficking in a Controlled Substance in the First Degree.

At the close of the Commonwealth’s case, Childers moved for a directed verdict based on insufficiency of the evidence and the court denied the motion. Childers did not present any evidence but did renew her motion for a directed verdict, which the court again denied. The jury found Childers guilty of complicity to trafficking in a controlled substance in the first degree. Childers’s final argument on appeal is that there was insufficient evidence to support her conviction. We disagree.

On a motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Commonwealth v. Benham, 816 S.W.2d 186, 187-88 (Ky.1991). In other words, the trial court must assume the Commonwealth’s evidence is true, while leaving to the jury determinations as to the credibility and weight to be given such evidence. Id. A directed verdict should not be given if the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt the defendant is guilty. Id. There must be evidence of substance, and the trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a “mere scintilla of evidence.” Id. On appellate review, we determine whether, under the evidence as a whole, it was clearly unreasonable for the jury to have found the defendant guilty. Fairrow v. Commonwealth, 175 S.W.3d 601, 609 (Ky.2005) (eit-ing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky.1983)).

Under the jury instructions, for the jury to find Childers guilty of complicity to trafficking in a controlled substance in the first degree, they had to believe beyond a reasonable doubt that Chad Johnson sold Oxycodone, a Schedule II controlled substance, to Osborne and that Childers “intentionally solicited, commanded, or engaged in a conspiracy with” Johnson for the purpose of trafficking in a controlled substance. See also Kentucky Revised Statutes (KRS) 502.020 and KRS 218A.1412(a).

Based on the record as a whole, it was not clearly unreasonable for the jury to find Childers guilty of complicity to trafficking in a controlled substance in the first degree. The jury could have found the elements of the charge sufficiently satisfied by the proof that Childers took both phone calls from Osborne; discussed with him the availability and sale of the drugs, including type, quantity and price; located the Oxycodone for Osborne; arranged the sale; drove herself and Johnson, who allegedly had the drugs, to the meeting place in order for the buy to occur; and took the $100 buy money from Osborne. Further, the forensic examination confirmed that the pills were Oxycodone, a Schedule II controlled substance. The evidence was sufficient to support the jury’s verdict, and the trial court did not err in refusing to direct a verdict in favor of Childers.

CONCLUSION

The trial court did not err in denying Childers’s inquiry into the nature of Osborne’s prior felony convictions while cross-examining Detective Wireman. Such evidence is not admissible under KRE 608(b), which permits impeachment only by specific acts that have not resulted *76in a criminal conviction. Evidence relating to impeachment by criminal conviction is governed solely by KRE 609. Further, Childers’s inquiry was improper under KRE 609, which requires a witness be questioned about his own prior conviction. The Commonwealth’s Attorney’s comments on the drug buy tape were permissible; and while-it was error for the trial court to allow Detective Wireman to interpret the tape, this error did not rise to the level of palpable error under RCr 10.26. Finally, based on the evidence as a whole, it was not clearly unreasonable for the jury to have found Childers guilty of complicity to trafficking in a controlled substance in the first degree. As such, we affirm the April 14, 2009 Judgment of the Lawrence Circuit Court.

MINTON, C.J.; CUNNINGHAM, and NOBLE, JJ., concur. VENTERS, J., dissents by separate opinion in which SCHRODER and SCOTT, JJ., join.

. Both KRE 608 and 609 are significantly similar to their federal counterparts and the discrepancies which exist do not affect our analysis here. KRE 608 essentially mirrors Federal Rule of Evidence (FRE) 608. While the language in KRE 609 and FRE 609 varies in some places, the thrust of the rules, especially as it concerns this issue, is the same.

. KRE 609(a). The specific language of Rule 609 is crimes "punishable by death or imprisonment for one (1) year or more." Thus, under Rule 609, evidence of a misdemeanor conviction can never be admitted.

. The gravest concerns arise when the witness is the defendant on trial so some of these scenarios could be avoided by drawing a distinction between a witness and a defendant-witness. However, our current rules do not allow for that distinction.

. Even if we held that convictions are admissible under KRE 608(b), Childers's evidence would still not be admissible. Assuming, ar-guendo, that the facts underlying a conviction may be admitted under KRE 608(b) if they are probative of truthfulness or untruthfulness, Childers could still not inquire into Osborne’s convictions because Detective Wireman never testified to Osborne's honest character, as required by KRE 608(b)(2).

. Osborne later took the stand; and defense counsel asked him on cross-examination, "You're a twice-convicted felon. Third time is your magic number, isn’t it?” Osborne answered affirmatively. No further inquiry was made into Osborne’s convictions. However, if defense counsel had attempted to do so, such inquiry would be barred by KRE 609. See also Commonwealth v. Richardson, 674 S.W.2d 515, 517-18 (Ky.1984) ("[A] witness may be asked if he has been previously convicted of a felony. If his answer is "Yes,” that is the end of it ... Identification of the prior offense or offenses, before the jury, by either the prosecution or defense, is prohibited.”).