IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER 

CASE IN ANY COURT OF THIS STATE; HOWEVER, 

UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED 

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE 

BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION 

BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 

DECISION IN THE FILED DOCUMENT AND A COPY OF THE 

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE 

DOCUMENT TO THE COURT AND ALL PARTIES TO THE 

ACTION. 
tcraiNunmnii: rnitsmuttici 

0,Suprrtur Court of 1,fir 

2013-SC-000813-MR 

OATS- -at•- ■5 

STEVEN COLE GOODMAN APPELLANT 

ON APPEAL FROM HARDIN CIRCUIT COURT 

V. HONORABLE KEN HOWARD, JUDGE 

NO. 12-CR-00626 

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING IN PART, VACATING IN PART AND REMANDING 

A jury found Steven Cole Goodman (Goodman) guilty of two counts of 

first-degree robbery; four counts of wanton endangerment; one count each of 

first-degree assault, first-degree burglary, theft by unlawful taking of a firearm, 

and theft by unlawful taking of more than $500; and of being a persistent 

felony offender in the second degree. Goodman's convictions arose from a 

series of events that began at Carolyn's Corner, a liquor/convenience store, 

and continued to the homes of store employee Jason Matz (Matz) and his 

neighbor, Gilbert Board (Board). Goodman argues on appeal that his 

convictions of first-degree robbery, first-degree assault, and theft as to Matz 

and his convictions of first-degree robbery and theft as to Board violated his 

right to be free from being placed in jeopardy twice for the same crime. 

Goodman also argues that the trial court erred by not granting his motion to 
suppress the out-of-court identification by the owner of Carolyn's Corner, 

Carolyn Edelen (Edelen). Having reviewed the record and the arguments of the 

parties, we affirm in part and vacate in part and remand. 

I. BACKGROUND 

Carolyn's Corner opens on Saturdays at 8:00 a.m. On Saturday October 

27, 2012, Edelen arrived at Carolyn's Corner at approximately 5:30 a.m. to 

prepare the store for opening. A man who Edelen later identified as Goodman 

entered the store at approximately 6:30 a.m. Edelen told him the store was 

closed, and he said that he just wanted to use the telephone. Edelen told 

Goodman she did not have her phone but that her husband would be there 

soon, and he might let Goodman make a call. Goodman left the store but 

stayed on the porch. When Edelen went to lock the door, Goodman pushed his 

way back into the store. He told Edelen he had a gun and would shoot her if 

she did not give him her car keys. Edelen grabbed a plastic liquor bottle and 

swung it at Goodman and told him to leave. Goodman then grabbed a glass 

liquor bottle, grabbed Edelen, and the two struggled. Eventually, the two went 

out the front door of the store, and Goodman searched Edelen's car in a vain 

attempt to find her keys. 

In an attempt to get help, Edelen lied to Goodman and told him that she 

lived in Matz's house, which is across the street from the store. Believing that 

Edelen would get him money from the house, Goodman took her across the 

street to Matz's house. Edelen knocked loudly on Matz's door, which alarmed 

Matz, so he got his handgun before going to the door. When Matz opened the 
door, Goodman pushed his way into the house and the two struggled for 

control of Matz's gun. During the struggle Goodman shot Matz once in the 

chest and once in the elbow; however, neither wound was fatal. 

After shooting Matz, Goodman took Matz's gun, left his house, and went 

to Board's house, which was one lot away from Matz's. Goodman rang Board's 

doorbell and, when Board responded, Goodman pulled the door open and 

threatened to shoot and kill Board if he did not give Goodman his car keys. 

Board gave Goodman the keys, and Goodman drove away in Board's car. 

After receiving a tip, the police found Board's car parked in the woods 

near a trailer owned by Tedra Underwood. Based on information they received 

from Underwood and her boyfriend, Eddie Sutton, the police arrested Goodman 

the afternoon of October 29, 2012. Later that evening, Edelen went to the 

police station where she identified Goodman as the person who had attacked 

her. 

As a result of his actions on October 27, Goodman was indicted and 

ultimately convicted of the above-listed crimes. We set forth additional facts 

as necessary below. 

II. STANDARD OF REVIEW 

The issues raised by Goodman on appeal require different standards of 

review. Therefore, we set forth appropriate standard in our analysis of each 

issue. 

3 
III. ANALYSIS 

1. Double Jeopardy. 

Goodman was convicted of three crimes related to Matz that are at issue 

- theft by unlawful taking, first-degree robbery, and first-degree assault. He 

was convicted of two crimes related to Board that are at issue - theft by 

unlawful taking and first-degree robbery. Goodman argues that his conviction 

of the robbery of Matz precluded his convictions of theft and assault related to 

Matz. Similarly, he argues that his conviction of the robbery of Board 

precluded his conviction of theft related to Board. 

The double jeopardy clauses of the United States and Kentucky 

constitutions provide that a person may not be placed in jeopardy twice for the 

same crime. See U.S. Const. amend. V.; Ky. Const. § 13. We review issues 

related to violations of the double jeopardy clauses de novo. See Watkins v. 

Kassulke, 90 F.3d 138, 141 (6th Cir. 1996). 

a. Goodman's Convictions of First-Degree Robbery and Theft by 

Unlawful Taking as to Matz Violated Goodman's Right to Be Free 

From Being Placed in Double Jeopardy. 

As noted above, Edelen convinced Goodman to go to Matz's house by 

stating that it was her house, and she could get money for Goodman. When 

they got to Matz's house, Matz and Goodman struggled for control of Matz's 

gun, Matz was shot twice, and Goodman took Matz's gun. During the course of 

the struggle, Goodman told Edelen that he would kill Matz if she did not give 

him money and her car keys. Based on this evidence, the court instructed the 

jurors to find Goodman guilty of first-degree robbery if they believed that 
Goodman, while armed with a handgun, attempted to steal cash or a vehicle 

from Matz by the use or threatened use of physical force. The court also 

instructed the jurors to find Goodman guilty of theft by unlawful taking if they 

believed he took Matz's handgun, knowing it was not his own, with the intent 

to deprive Matz of the gun. The jurors found Goodman guilty under both 

instructions. 

Goodman argues that his conviction of theft related to Matz must be 

reversed because the robbery and theft convictions arose from the same act 

and thus violate the double jeopardy clauses. The Commonwealth, albeit with 

a little reluctance, concedes that Goodman is correct. 

We have previously held that "[i]n order to determine whether a person 

may properly be subjected to prosecution for multiple offenses based upon one 

act, courts use two main guideposts—the B/ockburgerl test and the expressed 

intent of the legislature." Lloyd v. Corn., 324 S.W.3d 384, 387 (Ky. 2010) 

(footnote added). In Lloyd, we held that, under the Blockburger test, robbery 

and theft would be two separate offenses because robbery requires the proof of 

elements that theft does not, i.e. the perpetrator of robbery must threaten to 

use or use force and be armed with a deadly weapon or dangerous instrument. 

Id. at 388. However, we also held that, when both theft and robbery arise from 

the same act, the legislature expressly intended "for theft by unlawful taking to 

be subsumed into robbery." Id. at 390. Therefore, a defendant cannot be 

convicted of both crimes if they arise from the same act. 

1Blockburger v. United States, 284 U.S. 299 (1932). 

5 
Here, Goodman's robbery and theft by unlawful taking convictions as to 

Matz arose from the same act; therefore, we agree that the convictions violated 

the double jeopardy clauses. As noted by the Commonwealth, in such 

situations the remedy is to vacate the conviction for the lesser offense. Kiper v. 

Corn., 399 S.W.3d 736, 746 (Ky. 2012), as modified on denial of reh'g (Apr. 25, 

2013). In this case, theft by unlawful taking is the lesser offense; therefore, 

Goodman's conviction for theft by unlawful taking as to Matz is vacated. 

b. Goodman's Convictions of First-Degree Robbery and Theft by 

Unlawful Taking as to Board Violated the Prohibition Against Placing 

Goodman in Jeopardy Twice for the Same Crime. 

The jury convicted Goodman of two crimes related to Board - first degree 

robbery for the theft of Board's car keys and theft by unlawful taking for the 

theft of Board's car. The Commonwealth, with little reluctance, concedes that 

the two convictions, which arose from the same offense, violate the prohibition 

against double jeopardy. For the reasons set forth above, we agree. Therefore, 

Goodman's conviction for theft by unlawful taking as to Board is vacated. 

c. Goodman's Convictions of First-Degree Robbery and First-Degree 

Assault as to Matz Did Not Violate the Prohibition Against Placing 

Goodman in Jeopardy Twice for the Same Crime. 

As previously noted, Goodman and Matz struggled for control of Matz's 

gun, Goodman shot twice, and Goodman took Matz's gun. The court 

instructed the jury on both first-degree robbery and first-degree assault. As 

noted above, there are two guideposts for determining if conviction of two 

crimes arising from one act violates the double jeopardy prohibition - the 

Blockburger test and the express intent of the legislature. 
Under Blockburger, the question is whether the statutory provisions of 

each offense require proof of a different fact or different facts. Lloyd 324 

S.W.3d at 387. A person is guilty of first-degree robbery when 

in the course of committing theft, he uses or threatens the 

immediate use of physical force upon another person with intent to 

accomplish the theft and when he: 

(a) Causes physical injury to any person who is not a participant in 

the crime; or 

(b) Is armed with a deadly weapon; or 

(c)'Uses or threatens the immediate use of a dangerous instrument 

upon any person who is not a participant in the crime. 

Kentucky Revised Statute (KRS) 515.020. 

A person is guilty of first-degree assault when 

a) He intentionally causes serious physical injury to another 

person by means of a deadly weapon or a dangerous instrument; 

or 

(b) Under circumstances manifesting extreme indifference to the 

\value of human life he wantonly engages in conduct which creates 

a grave risk of death to another and thereby causes serious 

physical injury to another person. 

KRS 508.010. 

First-degree robbery requires a person to use or threaten the use of 

physical force with the intent to commit a theft. Simultaneously, the person 

must cause physical injury, or be armed with a deadly weapon, or use or 

threaten to use a dangerous instrument. First-degree assault requires a 

person to intentionally cause serious physical injury by using a deadly weapon 

or dangerous instrument. In the alternative, it requires the person to manifest 

7 
extreme indifference to human life and to wantonly engage in conduct that 

causes serious physical injury. First-degree robbery requires proof of a theft, 

first-degree assault does not. First-degree assault requires proof of a serious 

physical injury, first-degree robbery does not necessarily require proof of any 

injury. Therefore, under Blockburger, the two statutes require proof of different 

facts and conviction of both offenses does not violate the prohibition against 

double jeopardy. 

However, as in Lloyd, our analysis must also include a determination if 

the legislature intended for assault to be subsumed into robbery. Having 

reviewed the statutes and relevant case law, we hold that it did not for three 

reasons. 

First, in Lloyd, we held that theft is subsumed into robbery in large part 

because both statutes require a finding that a theft occurred. In other words, 

the legislature devised the statutes so that theft is a prerequisite to both 

offenses. There is no such similar prerequisite for conviction of robbery and 

assault. A person can commit a robbery without injuring someone but cannot 

commit assault without doing so. Furthermore, a person can commit assault 

without stealing something but cannot commit robbery without doing so. 

Thus, the robbery and assault statutes lack the overlapping prerequisite found 

in the robbery and theft statutes. 

Second, as we noted in Lloyd, the commentary to the first-degree robbery 

statute specifically states that "all of the elements of the crime of theft as set 

forth in KRS 514.030 are incorporated into" first-degree robbery. 324 S.W.3d 

8 
at 390. No such incorporating language for KRS 508.010, the first-degree 

assault statute, is contained in the commentary to KRS 515.020, the firstdegree robbery statute. 2Therefore, the statutes do not show an express 

legislative intent for assault to be subsumed by robbery. 

Third, the instruction for first-degree robbery stated the jurors had to 

believe that, in the course of a theft, Goodman "used or threatened the 

immediate use of physical force upon Jason Matz." It did not say the jurors 

had to believe that Goodman caused injury to Matz. The instruction for firstdegree assault stated that the jurors had to believe Goodman caused serious 

physical injury to Matz. It did not say the jurors had to believe that Goodman 

committed a theft. In Fields v. Commonwealth, 219 S.W.3d 742, 746 (Ky. 

2007), we held that similar instructions and resultant convictions did not 

violate the double jeopardy clause. We see no reason to alter that opinion. 

Therefore, we affirm Goodman's convictions of first-degree robbery and firstdegree assault as to Matz. 

Finally, we note that Goodman relies in large part on Commonwealth v. 

Varney, 690 S.W.2d 758, 759 (Ky. 1985), wherein we held that assault is a 

lesser included offense of robbery and a defendant cannot be convicted of both 

crimes arising from the same act. However, as the Commonwealth notes, 

Varney relies in large part on our holding in Slierley v. Commonwealth, 558 

2The commentary at the beginning of KRS Chapter 515 does state that 

"[r]obbery is a combination of two other crimes (theft and assault). . . ." However, the 

commentary to KRS 515.020 only states that "all of the elements of the crime of theft . 

.. are incorporated into" first-degree robbery. It does not state that all of the elements 

of assault are incorporated. 

9 
S.W.2d 615 (Ky. 1977), a case we have since declared to be "an aberration in 

our double jeopardy decisional law." Dixon v. Commonwealth, 263 S.W.3d 583, 

589 (Ky. 2008). Therefore, Varney is of no persuasive or precedential value. 

2. The Trial Court's Denial of Goodman's Motion to Suppress Edelen's 

Identification Was Not Error. 

The police arrested Goodman the afternoon of October 29, 2012. Later 

that day, Kentucky State Police Detective Jonathan Vaughn contacted Edelen, 

told her that the police had a suspect in custody, and asked her to come to the 

police station to see if the suspect was the person who had attacked her. At 

the police station, Edelen watched via closed circuit television as an officer and 

Goodman spoke in an interrogation room. Edelen then identified Goodman as 

the man who had attacked her and Matz. 

Prior to trial, Goodman filed a motion to suppress Edelen's identification 

arguing that it was fatally tainted because it was made under highly suggestive 

and unreliable circumstances. Following an evidentiary hearing, the court 

denied Goodman's motion. On appeal, Goodman argues that the trial court 

erred by not suppressing Edelen's identification. 

Appellate review of a trial court order on a suppression motion 

involves a two-step analysis. First, the factual findings of the trial 

court are conclusive if supported by substantial evidence. Second, 

if the findings are supported by substantial evidence, the appellate 

court conducts a de novo review to determine whether the trial 

court's ruling is correct as a matter of law. 

Anderson v. Commonwealth, 352 S.W.3d 577, 583 (Ky. 2011)(internal citations 

omitted). 

10 
In its on-the-record ruling, the trial court first found that the singleperson showup identification Edelen made was "inherently suggestive." See 

Rodriguez v. Commonwealth, 107 S.W.3d 215, 218 (Ky. 2003). Based on that 

finding, the court then undertook an analysis of the totality of circumstances 

surrounding Edelen's identification to determine the likelihood those 

circumstances led to an "'irreparable misidentification' by the witness." Id. 

In assessing the totality of the circumstances, a trial court must consider 

the following five factors: 

(1) [T]he opportunity of the witness to view the criminal at the time 

of the crime[;] (2) the witness's degree of attention[;] (3) the 

accuracy of the witness's prior description of the criminal[;] (4) the 

level of certainty demonstrated by the witness at the 

confrontation[;] and (5) the length of time between the crime and 

the confrontation. 

Id. The trial court addressed each of those factors in its order, finding that 

there was not a likelihood that Edelen had irreparably misidentified Goodman 

as a result of the single person showup. We agree. 

As to the first factor, Edelen testified it was dark outside when Goodman 

entered the store, and she had not turned on the overhead lights. However, 

she testified a Pepsi machine and a light she had on behind the counter 

provided sufficient light for her to see Goodman clearly. Furthermore, she 

testified Goodman made no attempt to hide or obscure his face; he walked up 

to her when he asked to use the phone; the two were less than three feet apart 

when they struggled in the store; there was a security light on outside the 

building; and she could see Goodman's face when he was ransacking her car. 

11 
The trial court found that, based on the preceding facts, Edelen had sufficient 

opportunity to view Goodman. We discern no error in the trial court's finding, 

thus, this factor weighs in favor of the Commonwealth. 

As to the second factor, Edelen testified that she was afraid; however, 

she made several attempts to get Goodman outside the store so she could lock 

the door. When those attempts failed, she devised a plan to get Goodman to 

Matz's house where she believed she could get help. The trial court found this 

evidence indicated that, despite her fear, Edelen's attention was sufficiently 

focused to enable her to identify Goodman. Goodman argues this finding by 

the trial court was not supported by the evidence because Edelen did not 

testify directly about her degree of attention. We disagree. 

There need not be direct testimony about a victim's degree of attention 

because "attention during traumatic experience is presumed to be acute." 

Rodriguez v. Commonwealth, 107 S.W.3d 215, 218 (Ky. 2003) citing to 

Levasseur v. Pepe, 70 F.3d 187, 195 (1st Cir.1995). Furthermore, the trial 

court's inference that Edelen's ability to devise plans to extricate herself from 

the situation indicated she was able to focus her attention despite her fear is 

logical and supported by the evidence. Thus, this factor weighs in favor of the 

Commonwealth. 

As to the third factor, Detective Vaughn testified that when he 

interviewed Edelen after the fact, she gave a "pretty good description," of 

Goodman and what he was wearing. Detective Vaughn did not set forth any 

details of Edelen's description, stating that he would need to review his notes to 

12 
do so; however, neither the Commonwealth nor Goodman asked Detective 

Vaughn to review those notes. Detective Vaughn also testified that he had 

reviewed security video, but, due to the quality of the video, he was unable to 

identify Goodman. However, he testified that the person in the video was 

wearing dark jeans with a pattern on the back. 

Edelen testified that the perpetrator was slightly taller than she is, 

weighed approximately 150 pounds, and wore jeans with a white mark or spot 

on the back, a black pullover sweatshirt, and a gray toboggan. 3She reviewed 

photographs of a toboggan recovered from Matz's house and jeans taken from 

Goodman's house and identified those as what Goodman was wearing. The 

trial court noted that this testimony was consistent but failed to delineate with 

what it was consistent. Goodman now argues that this alleged failing by the 

trial court is fatal to its order denying the motion to suppress. We disagree for 

three reasons. 

First, Goodman did not ask Detective Vaughn to review his notes or 

otherwise attempt to get a better delineation of the description Edelen made the 

morning of the crime. Furthermore, he did not ask the court to make any 

additional findings regarding this factor. Second, Edelen's description of 

Goodman's jeans was consistent with the jeans in the photograph and with 

Detective Vaughn's description from the video tape. Finally, this factor is but 

one of five and is not necessarily dispositive. At worst, the trial court's failure 

3A toboggan can refer to a sled or to a knit cap. In this case, it refers to a knit 

cap. 

13 
to determine explicitly whether Edelen's description the day of the crime was 

consistent with her testimony during the hearing may weigh in favor of 

Goodman; however, it does not, as a matter of law, outweigh the other factors. 

As to the fourth factor, Edelen testified she would never forget the 

perpetrator's face, and she knew as soon as she saw him, without a doubt, that 

Goodman was the perpetrator. Goodman appears to be arguing that the fact 

Detective Vaughn asked Edelen to come to the police station to look at a 

suspect negates Edelen's testimony. We disagree. 

The trial court was free to believe Edelen, which it did. Furthermore, 

Edelen's testimony was bolstered by Detective Vaughn's testimony that, when 

Edelen saw Goodman, she became upset and began shaking. Therefore, this 

factor weighs in favor of the Commonwealth. 

The final factor, the time between the crime and the in-person 

identification was approximately 48 hours. Goodman correctly makes no 

argument that this factor should weigh in his favor. 

In summary, four of the five reliability factors weigh in favor of the 

Commonwealth. While the fifth factor may weigh in favor of Goodman, it does 

not, as a matter of law, outweigh the other four. Therefore, we discern no error 

in the trial court's denial of Goodman's motion to suppress Edelen's 

identification. 

IV. CONCLUSION 

For the foregoing reasons Goodman's convictions for theft by unlawful 

taking as to Matz and Board are vacated and this matter is remanded to the 

14 
trial court for entry of a consistent judgment. Goodman's remaining 

convictions are affirmed. Because Goodman was sentenced to thirty years' 

imprisonment for the robbery convictions and the sentences for his other 

convictions were ordered to run concurrently therewith for a total of thirty 

years' imprisonment, Goodman's sentence will remain unchanged. 

Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ., 

sitting. All concur. 

COUNSEL FOR APPELLANT: 

Linda Roberts Horsman 

Department of Public Advocacy 

COUNSEL FOR APPELLEE: 

Jack Conway 

Attorney General of Kentucky 

James Daryl Havey 

Assistant Attorney General 

15