Culver v. Commonwealth, 2017-SC-000568-DG

• Decision Date: 19 December 2019
• Docket Number: 2017-SC-000568-DG
• Citation: 590 S.W.3d 810
• Parties: Christopher CULVER, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

590 S.W.3d 810

Christopher CULVER, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2017-SC-000568-DG

Supreme Court of Kentucky.

DECEMBER 19, 2019

COUNSEL FOR APPELLANT: Kathleen K. Schmidt, Assistant Public Advocate, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Andy Be shear, Attorney General of Kentucky, Jason Bradley Moore, Jeffrey Ray Prather, Jesse Robbins, Assistant Attorneys General, Office of Criminal Appeals.

OPINION OF THE COURT BY JUSTICE HUGHES

Christopher Culver appeals from the Court of Appeals’ opinion affirming his convictions for first-degree fleeing or evading police and first-degree wanton endangerment (two counts, one count for each pursuing police officer). On appeal to this Court, Culver maintains that evidence was not sufficient to survive a motion for directed verdict on these charges. Culver’s primary argument is that the Court of Appeals ignored factually similar Willis v. Commonwealth, No. 2014-SC-000757-MR, 2016 WL 4487202 (Ky. Aug. 25, 2016) (unpublished), and like Willis, the evidence introduced at his trial was not sufficient to prove he created a substantial risk of serious physical injury or death, the element common to both charges, when the police pursued him in a motor vehicle chase. Finding the evidence sufficient to prove the challenged element, we affirm the Court of Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

On December 15, 2012, Bardstown police were on the lookout for a man in a red car who left the scene of a domestic disturbance. Around 2:15 a.m., Police Officer Michael Medley noticed a beige Buick LeSabre on the passenger side of a red car in the Parkview Baptist Church parking lot. While he was pulling in to investigate, the man standing between the vehicles got into the Buick and slowly drove away. Officer Medley discovered the red car’s passenger-side window had been broken out. Suspecting the driver of the Buick had broken into the red car, Officer Medley radioed Officer Nathan Phillips to stop the Buick. Officer Phillips, at the gas station across the street, pulled behind the Buick at the Parkway Drive and U.S. 150 intersection and activated his lights and siren. Rather than stopping, the Buick turned left onto U.S. 150 (Springfield Road) and accelerated. Officer Medley, with lights and siren on, followed Officer Phillips in pursuit of the Buick. Only later did police discover that Culver was the driver they were pursuing.

The officers pursued Culver two miles on U.S. 150 and then over a series of side roads including Highway 605 (Poplar Flat Road), Woodlawn Road, Wire Lane, and Stringtown Road, with the 5-6 minute pursuit encompassing approximately eight (8) miles. The posted speed limit in the area is 55 m.p.h.

Officer Phillips testified at trial that he travelled 80 m.p.h.-plus at one point on Springfield Road, and that his travel on this, the straightest of the five roads, would have been the fastest. He estimated going 70-75 m.p.h on Poplar Flat Road, which he described as a really curvy road. He described the side roads as being narrow, Wire Lane as having some curves, and Stringtown Road as being really curvy. He did not know his or Culver’s speed on those two roads, but Culver, going much faster than he, widened the gap between them. He concentrated on negotiating the curves so as not to wreck or crash and on keeping an eye on Culver at the same time. Officer Phillips lost sight of Culver after a couple of curves and hills on Stringtown Road and terminated the pursuit. He testified that he and Culver were taking the curves on these roads faster than they should have been, the chase was not safe, and he believed his life was in danger. Officer Phillips stated that Culver swerved around curves, but did not swerve when going straight, did not veer toward other objects, did not put on the brakes to stop short, and did not turn around to come toward him.

Officer Medley testified they traveled 65-70 m.p.h. on U.S. 150, over the speed limit on curvy Highway 605, and 65-70 m.p.h. over the other curvy roads, Wire Lane and Stringtown Road. No other cars were on these roads during the pursuit. Traveling behind Officer Phillips, Officer Medley did not observe Culver veer toward other property, slam on his brakes to cause a collision, or turn around and come back toward them. He testified that he felt his life was in danger due to the speed of the pursuit. During cross-examination, he also stated that as far as the officers driving 65-70 m.p.h., that was a safe speed, but they were not able to keep up with the suspect.

Culver was charged with first-degree wanton endangerment (two counts, one count for operating a motor vehicle in a reckless manner while being pursued by Officer Nathan Phillips with his vehicle and another count for Officer Michael Medley) and first-degree fleeing or evading police (motor vehicle). Culver was also charged with: first-degree wanton endangerment related to a Nelson County deputy speeding 90-95 m.p.h. on Poplar Flat Road to join the pursuit, which resulted in the deputy not negotiating a curve and wrecking his vehicle; theft by unlawful taking over $500 (items stolen from the red car parked in the church lot); and being a persistent felony offender in the first degree (PFO I).

After a two-day trial, a jury found Culver guilty of all charges, except the jury found Culver guilty of misdemeanor second-degree wanton endangerment as to the Nelson County deputy. The jury recommended an enhanced twelve (12) year prison sentence for each felony crime and that the sentences be served concurrently, for a total sentence of twelve (12) years. The jury also recommended Culver serve thirty (30) days in jail, concurrent to the other sentences, for committing second-degree wanton endangerment. The trial court imposed the recommended sentence.

At trial, Culver moved for a directed verdict on each charge. The grounds for the directed verdict on the first-degree fleeing or evading charge and the first-degree wanton endangerment charges were the Commonwealth failed to prove Culver caused or created a substantial risk of serious physical injury or death to the pursuing officers — the element common to both crimes.¹ The trial court denied the motions. On appeal, the Court of Appeals vacated the second-degree wanton endangerment conviction, but affirmed all the other convictions. Before this Court on a grant of discretionary review, Culver continues to challenge the first-degree wanton endangerment and first-degree fleeing or evading convictions. He does not challenge the theft by unlawful taking or first-degree PFO convictions.

ANALYSIS

To obtain a conviction of a defendant, the Commonwealth has the burden to prove beyond a reasonable doubt each element of the crime charged. Kentucky Revised Statute (KRS) 500.070(1) ; see In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). On the motion for a directed verdict, the single controlling question for the trial court is whether the Commonwealth has sustained the burden of proof by more than a scintilla of evidence, with such evidence being of probative value and of the quality to induce conviction in the minds of reasonable men. James v. England, 349 S.W.2d 359, 361 (Ky. 1961) (citation omitted). When the evidence is insufficient to induce reasonable jurors to believe beyond a reasonable doubt that a defendant is guilty, a verdict may be directed. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). When assessing the evidence, the trial court must consider the Commonwealth’s evidence as a whole, assume the evidence is true, and draw all reasonable inferences from the evidence in favor of the Commonwealth. Id. The trial court may not consider questions of weight and credibility, those being the province of the jury. Id. The trial court’s denial of a directed verdict may only be reversed by an appellate court when "under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt." Id.

The crimes at issue involve similar elements. For first-degree wanton endangerment, the Commonwealth was charged with proving Culver "under circumstances manifesting extreme indifference to the value of human life, ... wantonly engage[d] in conduct which create[d] a substantial danger of death or serious physical injury to another person."² KRS 508.060. For first-degree fleeing or evading police, the Commonwealth’s burden was to prove that "while operating a motor vehicle with intent to elude or flee, [Culver] knowingly or wantonly disobey[ed] a direction to stop his ... motor vehicle, given by a person recognized to be a police officer, and ... [b]y fleeing or eluding, he [caused], or create[d] substantial risk, of serious physical injury or death to [a] person or property." KRS 520.095(1)(a) 4.

With respect to the results and circumstances described by these criminal offenses, a person acts "wantonly" "when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists." KRS 501.020(3). As to the risk, it "must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." Id. "Serious physical injury" is "physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ." KRS 500.080(15).

Culver argues that the evidence was insufficient to prove that as to both first-degree wanton endangerment and first-degree fleeing or evading, his fleeing in a vehicle caused or created substantial risk of serious physical injury or danger of death to Officers Phillips and Medley or serious injury to property.^{3 ,4} Culver cited published and unpublished cases in his briefs to the Court of Appeals to support these arguments. Culver discussed the facts in Shouse v. Commonwealth, 481...