CAPERTON, JUDGE:
Gregory Goetz appeals from the denial of his RCr 11.42 motion following an evidentiary hearing. On appeal, Goetz argues that he received ineffective assistance of counsel as trial counsel failed to request jury instructions reflecting voluntary intoxication and wanton endangerment and that trial counsel failed to properly prepare the witnesses prior to their testimony. After a thorough review of the record, the arguments of the parties, and the applicable law, we affirm.
Goetz was convicted of First-Degree Robbery and being a Persistent Felony Offender in the First-Degree. In affirming his conviction on direct appeal, the Kentucky Supreme Court set out the facts which emerged from trial and addressed Goetz claimed errors:
Goetz v. Commonwealth, 2004-SC-001002-MR, 2007 WL 3225437 (Ky. Nov. 1, 2007) (internal footnotes omitted).
Thereafter, Goetz filed this RCr 11.42 motion with the trial court. Goetz argued (1) that trial counsel provided ineffective assistance of counsel by failing to request jury instructions on voluntary intoxication and wanton endangerment; (2) that counsel failed to adequately prepare the witnesses by failing to inform Goetz that his status as a convicted felon would be revealed if he testified; (3) that counsel was ineffective by failing to prevent the disclosure of his criminal history through the defense witnesses; and (4) counsel failed to present mitigating evidence during the penalty phase of his trial. After conducting a hearing on the matter, the trial court issued a thirty-two page order denying Goetz's RCr 11.42 motion. In so doing, the trial court found that Goetz did not receive ineffective assistance of counsel as trial counsel pursued a reasonable trial strategy in not requesting the voluntary intoxication instruction and the accompanying instruction for the lesser included offense of wanton endangerment, but instead went for an acquittal by attempting to negate the intent element of Robbery in the First-Degree.
In reaching this conclusion, the court found that the evidence presented by the Commonwealth was overwhelming. Moreover, the court believed that in light of Goetz's refusal to accept the Commonwealth's offer of twenty-three years because he felt the sentence was too great, it was reasonable to not pursue a course of action that may have resulted in a sentence of twenty-five years. The court also opined that the record indicated that trial counsel prepared and presented a reasoned defense. Additionally, the trial court found that Goetz was surprised on the stand when he had to reveal that he was a convicted felon, and that the remaining witnesses did mention his criminal history in their testimony. However, the court found that such deficiencies did not result in any prejudice as the references to his criminal past were brief and as a precaution the court gave an admonition to the jury curing any error. Lastly, the court found that only Goetz could present his defense.
The trial court likewise found that trial counsel did not provide ineffective assistance of counsel during the penalty phase. It held that counsel presented evidence of Goetz's drug addiction at trial and then during the penalty phase urged the jury to understand the ravages of drug addiction, and that Goetz failed to offer any witness to testify to additional mitigating evidence. It is from this order that Goetz now appeals.
On appeal, Goetz presents four arguments. First, he argues that he was denied effective assistance of counsel when trial counsel failed to request voluntary intoxication and wanton endangerment instructions after presenting the sole defense of voluntary intoxication. Second, he was denied effective assistance of counsel when trial counsel failed to advise Goetz that his status as a convicted felon would be revealed if he testified at trial. Third, he was denied effective assistance of counsel when trial counsel failed to prepare the defense witnesses in advance of trial. Fourth, he was denied effective assistance of counsel when trial counsel failed to present any mitigating evidence at sentencing. With these arguments in mind, we now turn to our applicable law.
We review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 AmJur.2d Appellate Review § 695 (1995)).
To establish an ineffective assistance of counsel claim under RCr 11.42, a movant must satisfy a two-prong test showing both that counsel's performance was deficient, and that the deficiency caused actual prejudice resulting in a proceeding that was fundamentally unfair, and as a result was unreliable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002).
As set out in Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002):
Bowling at 411-412.
Moreover, the burden is on the movant to overcome a strong presumption that counsel's assistance was constitutionally sufficient or that under the circumstances counsel's action "might have been considered sound trial strategy." Strickland, 466 U.S. at 689.
In appealing from the trial court's grant or denial of relief based on ineffective assistance of counsel, the appealing party has the burden of showing that the trial court committed an error in reaching its decision. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). We note that as both parts of the Strickland test for ineffective assistance of counsel involve mixed questions of law and fact, the reviewing court must defer to the determination of facts and credibility made by the trial court. Brown, supra, citing McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky. 1986).
Where the court has held an evidentiary hearing, as in the instant case, the issue on appeal becomes whether the court was clearly erroneous in finding that the defendant received effective assistance of counsel. Commonwealth v. Payton, 945 S.W.2d 424, 425 (Ky.1997) (internal citation omitted). A finding is not clearly erroneous if supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998).
Moreover, in reviewing the trial court's post-hearing ruling on an RCr 11.42 motion, we "must defer to the determinations of fact and witness credibility made by the trial judge." Sanborn v. Commonwealth, 975 S.W.2d 905, 909 (Ky. 1998), overruled on other grounds, by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
Additionally,
Brown v. Commonwealth., 253 S.W.3d 490, 500 (Ky. 2008). With this in mind we now turn to Goetz's presented arguments.
Goetz first argues that he was denied effective assistance of counsel when trial counsel failed to request voluntary intoxication and wanton endangerment instructions after presenting the sole defense of voluntary intoxication.
KRS 501.080 states that intoxication can be a defense to a criminal charge if that condition "[negates] the existence of an element of the offense." A slight degree of drunkenness alone does not require an intoxication instruction. See Jewell v. Commonwealth, 549 S.W.2d 807, 812 (Ky. 1977) overruled on other grounds, Payne v. Commonwealth, 623 S.W.2d 867 (Ky. 1981). An intoxication instruction is only necessary when the intoxication was so great that the evidence indicates the defendant did not know what he was doing in committing the crimes. Springer v. Commonwealth, 998 S.W.2d 439, 451 (Ky. 1999). Appellant's testimony raises a jury question as to whether Appellant was too intoxicated to form the intent to commit assault. See Mishler v. Commonwealth, 556 S.W.2d 676, 680 (Ky. 1977) (Holding that while defendant's testimony was almost certainly preposterous, it raised a jury question on whether the defendant was too intoxicated to form the intent to commit a crime).
When the jury finds that, because of intoxication, the defendant could not form the necessary intent for the charged crime, the result is not acquittal but a conviction for a crime with a lesser mental state. Slaven v. Commonwealth, 962 S.W.2d 845, 857 (Ky. 1997). Thus, voluntary intoxication is not an absolute defense, but acts to reduce the mental state from intentional to wantonness or recklessness. 1 Cooper, Kentucky Instructions to Juries (Criminal) § 11.30. However, to mitigate a defendant's intent, mere intoxication is not enough. There must also be sufficient evidence to raise a doubt that the defendant knew what he was doing. Lickliter v. Commonwealth, 142 S.W.3d at 68; Stanford v. Commonwealth, 793 S.W.2d 112 (Ky. 1990). Thus, in the case sub judice Goetz was entitled to an instruction on voluntary intoxication. However, if Goetz had requested a voluntary intoxication jury instruction, then this would have acted to reduce the mental state from intentional to wantonness or recklessness, and Goetz would have been entitled to a wanton endangerment instruction.
As noted, the trial court did not find ineffective assistance of counsel as trial counsel pursued a reasonable trial strategy of not requesting the voluntary intoxication instruction and the accompanying instruction for the lesser included offense of wanton endangerment, but instead went for an acquittal by attempting to negate the intent element of Robbery in the First-Degree. McKinney v. Commonwealth, 60 S.W.3d 499, 507 (Ky. 2001) (Trial strategy to waive instructions on any lesser offense on the theory that the jury would not believe that Appellant was guilty of intentional murder). Therefore, we agree with the trial court and find no error.
Goetz next argues he was denied effective assistance of counsel when trial counsel failed to advise him his status of a convicted felon would be revealed if he testified at trial.
In addressing Goetz's next argument, we note that a defendant's right to testify on his own behalf must necessarily be balanced against the defendant's Fifth Amendment to the United States Constitution which, provides that a defendant cannot be compelled to incriminate himself by his own testimonial communications. See Crawley v. Commonwealth, 107 S.W.3d 197, 199 (Ky. 2003); Dillman v. Commonwealth, 257 S.W.3d 126, 128 (Ky.App. 2008). "When a defendant decides to testify in his own defense, he subjects himself to the rigors of cross-examination and must answer all questions relevant to the prosecution of the case." See Dillman at 128. Thus, a defendant has a constitutional right not to incriminate himself; but if he should testify, then this right is compromised to the extent of proper cross-examination. And, as with any constitutional right, the defendant must know of the right to waive it. See Crawley at 199. Counsel certainly has an obligation and duty to advise a defendant of constitutional rights and trial strategies that may compromise those rights.
We agree with the trial court that Goetz was genuinely surprised when the prosecutor asked if he had been convicted of a prior felony. Thus, we must conclude that trial counsel was deficient in not adequately preparing Goetz to take the stand in light of his criminal history. However, we likewise agree with the trial court that this did not result in actual prejudice to Goetz given the admonition given to the jury thereafter. "A jury is presumed to follow an admonition to disregard evidence and the admonition thus cures any error." Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).
Goetz's third claim of ineffective assistance of counsel, that he was denied effective assistance of counsel when trial counsel failed to prepare the defense witnesses in advance of trial, likewise does not entitle him to relief. At trial, Goetz's remaining witnesses briefly mentioned Goetz's criminal past. The trial court did not find any resulting prejudice from these inadvertent disclosures even if trial counsel was deficient in adequately preparing the witnesses to prevent the disclosure of Goetz's criminal past. We are inclined to agree as the references to Goetz's criminal past were fleeting and were cured by the subsequent admonition given to the jury as discussed, supra. Thus, Goetz is not entitled to relief under his third claim of ineffective assistance of counsel.
Goetz last argues that he was denied effective assistance of counsel when trial counsel failed to present any mitigating evidence at sentencing. Goetz characterizes trial counsel's closing argument at the penalty phase as a terse appeal to the jury to understand the ravages of drug addiction. As previously stated, the trial court found that: (1) counsel presented evidence of Goetz's drug addiction at trial and based thereon, urged the jury during the penalty phase to understand the ravages of drug addiction and (2) Goetz failed to offer any witness to testify to additional mitigating evidence. Essentially, a vague allegation that counsel failed to investigate without offering specific facts as to what such an investigation would have revealed is insufficient to support an RCr 11.42 motion. Sanders v. Commonwealth, 89 S.W.3d 380, 390 (Ky. 2002) overruled on other grounds, Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Thus, we agree with the trial court that Goetz was not provided ineffective assistance of counsel given trial counsel's appeal to the jury to understand the ravages of drug addiction during the penalty phase.
In light of the aforementioned, we affirm.
ALL CONCUR.
Johnson at 441 (internal citations omitted).
We do not find that either exception is applicable in the case sub judice.
