Corbin v. Commonwealth

• Decision Date: 20 January 2022
• Docket Number: 2020-SC-0496-MR
• Parties: DAVID CORBIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: United States State Supreme Court — District of Kentucky

DAVID CORBIN APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

No. 2020-SC-0496-MR

Supreme Court of Kentucky

January 20, 2022

NOT TO BE PUBLISHED

ON APPEAL FROM ADAIR CIRCUIT COURT HONORABLE SAMUEL TODD SPALDING, JUDGE NOS. 19-CR-00097 & 19-CR-00102

COUNSEL FOR APPELLANT: Steven Jared Buck Assistant Public Advocate Department of Public Advocacy

COUNSEL FOR APPELLEE: Daniel J. Cameron Attorney General of Kentucky Kenneth Wayne Riggs Assistant Attorney General

MEMORANDUM OPINION

AFFIRMING

David Corbin appeals as a matter of right^[1] his convictions of fleeing or evading in the first degree, wanton endangerment in the first degree (three counts), and possession of marijuana. Following a careful review of the record and applicable law, we affirm.

I. Factual and Procedural Background

In April 2019, David Corbin returned to his home and discovered that his wife, Michelle, had placed all his possessions on their porch and locked the front door. Included in Corbin's possessions were five marijuana plants, which he had been growing in the house. Corbin attempted to convince Michelle to

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open the door but when she refused the couple began shouting at each other through the entryway. Eventually Michelle called the police and Corbin left the residence in a 2001 black Ford Explorer, which belonged to Michelle.

Shortly thereafter, deputies from the Adair County Sheriff's Department responded to Michelle's 911 call. While the deputies were still at the house, Corbin began sending Michelle a series of text messages which read:^[2]

• U dirtywhore u gonna wish u never touched my goddamn plants u will wish u was dead

• It's a good day to die bitch

• Show that to the lawweall can go together I give no ducks I got another pistol bitch

• U took allu taking of mine give it back or I'm gonna get very nasty that's your last warn g thief

• U gonna get me killed today goddamn who know who else over your fucking whore shit its [good] day to die bitch I'm ready

• Give me my gun I pass u on by

• U thief ass fucking trash u deserve all the bad u get can't leave well eno8ghalone little bitch could u

• Got me sks 4 30roundclips and my pistol

• goddamn all of u to hell

• Hey I come out dollar store u truck is gone

• Igotgroceryiesman damn

• Somebody stole it

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After leaving Michelle's home, Deputy Josh Durbin attempted to find Corbin. While driving, Durbin spotted a black Ford Explorer which matched Michelle's description and began following the vehicle. Durbin radioed for support and was joined by Sergeant Murphy. The two officers then attempted to pull the vehicle over. When Corbin, who both officers identified as the driver of the vehicle, refused to pull over Sergeant Murphy attempted to get in front of the vehicle and force him into a rolling stop. After the maneuver failed, the now four deputies in pursuit followed Corbin down a series of roads and onto a dirt path in the woods. All the vehicles involved in the chase had to stop their pursuit at this point because the road had become unnavigable. Only Sergeant Murphy, who was driving an SUV, attempted to follow Corbin down the dirt path. However, the chase ended quickly when Sergeant Murphy's SUV became stuck.

That evening, a group of four officers continued their search for Corbin on foot. While hiking the woods, the officers spotted a lit cigarette, which was quickly followed by the churn of an engine as a vehicle drove towards them. Trooper Bale, who was involved in the original pursuit, later identified the vehicle as the same Explorer involved in the first chase. Sheriff Brockman, who was not involved in the original chase but who has known Corbin since grade school, yelled for the vehicle to stop. Although the vehicle briefly slowed down, it quickly drove forward again, forcing the officers off the dirt path. Sheriff Brockman testified that the driver of the vehicle was Corbin. Later that

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evening, officers found the vehicle abandoned in a field. Several days later, Corbin was located at a motel in an adjacent county and arrested.

Following his arrest, a grand jury indicted Corbin on nineteen charges, the most serious of which included: first-degree fleeing or evading; first-degree wanton endangerment (five counts); cultivation of marijuana; first-degree illegal possession of a controlled substance; and being a first-degree persistent felony offender.^[3] The trial court granted directed verdicts of acquittal on the charges of disregarding a stop sign, improper passing, and first-degree criminal mischief. Prior to the final judgment, the trial court vacated two of the first-degree wanton endangerment convictions, with respect to Deputy Durbin and Officer Cravens. The trial court then sentenced Corbin to twenty years imprisonment.

II. Standard of Review

To properly preserve a motion for directed verdict the defendant must, among other elements, "identify the particular charge the Commonwealth failed to prove, and must identify the particular elements of that charge the Commonwealth failed to prove." Ray v. Commonwealth, 611 S.W.3d 250, 266 (Ky. 2020); CR^[4] 50.01. Corbin concedes that his general motions for a directed

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verdict failed to meet this requirement and thus requests palpable error review pursuant to RCr^[5] 10.26.

Under RCr 10.26, an unpreserved error may generally be noticed on appeal if the error is palpable and if it affects the substantial rights of a party. Even then, relief is appropriate only upon a determination that manifest injustice resulted from the error. For an error to rise to the level of palpable, it must be easily perceptible, plain, obvious and readily noticeable.

Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013) (internal quotations omitted). Manifest injustice is present when a "defect in the proceeding [exists that is] shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006). Consequently, we will find palpable error when the defendant suffers a "manifest injustice, either through the probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law." Jones v. Commonwealth, 331 S.W.3d 249, 256 (Ky. 2011) (internal quotation marks omitted).

III. Analysis

A. Fleeing or evading in the first degree.

Corbin's first claim involves the charge of fleeing or evading in the first degree. Under KRS^[6] 520.095(1), a person is guilty of fleeing or evading police in the first degree,

(a) When, while operating a motor vehicle with

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