NOT TO BE PUBLISHED

OPINION

LAMBERT, Judge.

Henry M. Bibbs, IV appeals from the Jefferson Circuit Court's judgment and conviction of sentence finding him guilty of attempted first-degree rape. Bibbs was sentenced to a total of seven years' imprisonment. After careful review, we affirm.

Dominga Williams and Bibbs were dating in September 2008, when the events giving rise to this case occurred. At that time, Williams lived with her six children in Louisville, Kentucky, and Bibbs lived in Cincinnati. Bibbs would come to Louisville on the weekends and stay at Williams' house.

One weekend in September 2008, Bibbs stayed with Williams, and the two had sexual intercourse. Williams fell asleep, but around 2 a.m., Bibbs woke her up and said he was going outside to listen to music in his car. At trial, Williams testified that Bibbs would go outside sometimes to listen to music because he "made music." Williams testified that she got up later when she heard a noise on the steps and went to the living room to check on her children who were watching a movie. She testified she then went back to her bedroom and saw Bibbs' suitcase, shoes, and keys and wondered how he could be listening to music in his car without his car keys.

Williams testified she then went upstairs to her daughter T.W.'s room. When she got there, Williams saw Bibbs on top of T.W. on the floor with one hand on his penis and one hand on her throat. Williams testified that she saw Bibbs trying to put his penis inside T.W. Williams ran downstairs to the kitchen and grabbed a knife but then threw the knife into the dining room. She stated that she threw the knife down because she thought Bibbs would get it away from her and injure her. She went to her bedroom and grabbed Bibbs' suitcase and wallet so he could not leave until the police arrived. Bibbs wrestled the suitcase away from her, and she could not get it back because he was too strong. Williams testified that she ran to her neighbor's house and banged on her windows. She told the neighbor to call 911 and ran back to her driveway where she grabbed a tire iron and started breaking the windows to Bibbs' car. As she was breaking his windows, he pulled out of the driveway and drove down the street.

Williams testified that when she went back into the house T.W. was laying at the bottom of the steps and was not acting normally. T.W. could not stand up and was confused. Williams testified that she had another child get a bucket and had T.W. stick her fingers down her throat to throw up because she thought T.W. had been drugged or given an unknown substance. Williams testified that a few days after the incident, Bibbs told her that T.W. had seduced him.

T.W. testified that she was fourteen years old in September 2008. She testified that the night of the incident she went to bed around 9 p.m. She testified that Bibbs came into her room, woke her up, and told her to go downstairs with him. She testified that he went to the kitchen and got two drinks. She drank one, and it burned her chest. She testified she tried to go upstairs but was dizzy and could not walk. She testified he helped her upstairs and put her on the floor, took off her clothes, got on top of her, and tried to have sex with her. She testified she could feel his penis go into her vagina and it felt like it was about two minutes before her mom came up and saw what was going on.

Police and EMS were dispatched to the residence, and T.W. was taken to Kosair Children's Hospital. Police collected a pair of panties, the rug from T.W.'s bedroom floor, and a cup. No physical evidence was found on these items. T.W. underwent extensive examination at the hospital and was given a sexual assault examination. No alcohol or drugs were found in T.W.'s system. No defects, injuries, abrasions, or lacerations were found on her genitals.

At trial, defense counsel's theory of the case was that Williams fabricated the story because she was upset that Bibbs broke up with her that night after she had believed Bibbs was going to move to Louisville to be closer to her and her children. T.W. went along with the story because she was scared of her mother. Defense counsel alleged that Williams subjected T.W. and her other children to extensive physical abuse. She admitted that she had been investigated by Child Protective Services and that an agreement was reached in which the children could stay in the home if Williams stopped hitting them or punishing them physically.

The jury was given instructions on rape in the first degree; rape in the third degree; attempted rape in the first degree; and attempted rape in the third degree. During deliberations, the jury sent a note out saying they had accidentally signed forms 10 and 11. They were reinstructed. Later, the jury returned a verdict on attempted first-degree rape and attempted third-degree rape. Defense counsel argued that the guilty verdict on attempted third-degree rape should serve as an acquittal on attempted first-degree rape. The jury was instructed to deliberate again and to only find Bibbs guilty of one offense, if any. After doing so, the jury returned a verdict of guilty on attempted first-degree rape. They subsequently recommended a sentence of seven years' imprisonment. The trial court followed the jury's recommendation and entered final judgment on May 8, 2013. Bibbs now appeals as a matter of right.

Bibbs argues the trial court should have declared an acquittal on the attempted first-degree rape charge based upon the jury's finding that he was guilty of attempted third-degree rape. Bibbs argues the double jeopardy clause prohibits the prosecution or conviction for a greater offense when a defendant has already been tried and convicted on a lesser included offense. See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

The Commonwealth argues that this case is similar to Buchanan v. Commonwealth, 399 S.W.3d 436 (Ky. App. 2012), wherein the trial court announced a not guilty verdict with regard to one of the charges. Two jurors indicated that the verdict was not correctly read. The trial court allowed the jury to return to the jury room to correct the verdict forms. The jury then returned with a guilty verdict, and all jurors indicated this was the correct verdict. On appeal, this Court determined that the jury could correct the verdict form in open court.

Similarly, in Bush v. Commonwealth, 839 S.W.2d 550, 556 (Ky. 1992), the Supreme Court of Kentucky held that "the jury may be reassembled at any time to correct a verdict when the defect is obviously one of form." In another similar case, McGinnis v. Wine, 959 S.W.2d 437, 439 (Ky. 1998), the Court concluded that requiring the jury to strictly comply with the instructions is the best course of action. In that case, the jury found the defendant not guilty of intentional murder but guilty of wanton murder. However, the jury foreperson also signed the not guilty verdict forms for the lesser included homicide offenses of first-degree manslaughter, second-degree manslaughter, and reckless homicide despite an admonition in the wanton murder instruction that if they found the defendant guilty of wanton murder, they were to stop there. The Court held that if the jury found the appellant guilty of the highest level offense, it necessarily concluded that all of the elements of the lower level offense were present. Thus, conviction of the lower level offense is "mere surplasage." Id. at 439 (internal citation omitted).

A review of the record indicates the jury intended to find Bibbs guilty of attempted rape in the first degree. In so doing, it necessarily found the requirements for rape in the third degree had been met. It appears the jury made a clerical error and was instructed that it needed to correct the error without being given any direction on how they should deliberate or decide the case. As discussed above, Kentucky courts have allowed verdict forms to be modified to correct errors. We do not agree with Bibbs that a double jeopardy violation has occurred. Simply put, the double jeopardy clause prohibits the prosecution or conviction for a greater offense when a defendant has already been tried and acquitted, or convicted, on a lesser included offense. See Brown v. Ohio, supra. In the instant case, Bibbs was clearly not being tried for attempted rape in the first degree after having been acquitted or convicted on the lesser included offense of attempted rape in the third degree. It appears that the jury simply made a mistake. The trial court properly instructed the jury to correct the mistake, as Kentucky case law allows and instructs it to do.

Finding no reversible error, we affirm the judgment of the Jefferson Circuit Court.

ALL CONCUR.