Fister v. Com., 2001-CA-002461-MR.
| Decision Date | 11 July 2003 |
| Docket Number | No. 2001-CA-002461-MR.,2001-CA-002461-MR. |
| Citation | 133 S.W.3d 480 |
| Parties | Martin D. FISTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Milton C. Toby, Perch & Toby, Lexington, KY, for Appellant.
Albert B. Chandler III, Attorney General of Kentucky, Michael L. Harned, Assistant Attorney General, Michael L. Harned, Frankfort, KY, for Appellee.
Before SARA WALTER COMBS, McANULTY, and PAISLEY, Judges.
Martin D. Fister appeals from the Circuit Court's judgment convicting him of one count of wanton endangerment in the first degree. Fister argues that the trial court's acquittal of him on two additional offenses of wanton endangerment in the first degree was inconsistent with the court's guilty verdict on the one count for the same offense when the underlying action was tried to the bench and all the charges arose from the same conduct and were supported by "virtually" identical evidence. Because we conclude that inconsistent verdicts, whether rendered by a judge or a jury, are not subject to reversal merely because they are inconsistent, we affirm.
The three charges of wanton endangerment in the first degree arose out of Fister's actions on September 30, 1998, toward three employees of Columbia Gas, Allen Kelly, Larry Brown, and Charles Combs, who were dispatched to repair an unmarked gas line ruptured by Fister's construction crew earlier in the day. Prior to the rupture, the crew had been performing site work as part of a contract awarded to Fister's company, Free Contracting, for road improvement in Scott County.
During the course of the road improvement project, Fister's company had experienced a couple of delays due to ruptured gas lines. Fister wanted Columbia Gas to accept responsibility for the delay on September 30, 1998, and became agitated when Allen Kelly refused to sign a document obligating Columbia Gas to reimburse Fister's company for any downtime that occurred due to the repair of the gas line.
After Fister's crew had been down for about two hours due to the gas line rupture, Fister decided he could not wait any longer for Brown and Combs, who were performing the actual work, to complete the repair. Fister claims that he told the Columbia gas employees to get their tools away from the line so he could fill in the hole. Then, Fister went to one of the backhoes on site and got a load of gravel, weighing at least 500 pounds. He drove the backhoe with the bucket of gravel to the vicinity of the ruptured line with the intention of covering the exposed line so his crews could return to work.
Combs had nearly completed the repair and had about five to ten minutes left of work to wrap it up. Combs was hunched over the leaking gas pipe in the hole, which was about one foot deep and a couple of feet wide, when Fister approached on the backhoe. Brown was assisting Combs and standing a little to the side of the hole. Allen Kelly was standing close to Brown and Combs and in the way of Fister's backhoe. Kelly observed Fister coming toward them and yelled at him. When Fister did not stop, Kelly screamed for Combs and Brown to move.
Combs was not aware of what Fister was doing, but he heard Allen Kelly warning him to get out of the way. Upon hearing Kelly's scream, Combs jumped back out of the hole and away from the backhoe just as Fister dumped the bucket of gravel. Some of the gravel from the load sprinkled his boots. Brown also moved back, out of the way, when he heard Allen Kelly's warning.
After Fister dumped the gravel, he told Brown and Combs to move their truck. Brown refused and took the keys out of the truck so no one else could move it. When Brown refused to move the truck, Fister instructed his site foreman to get a chain and move the truck out of the way with a bulldozer, which the foreman did.
One of the Columbia Gas supervisors called the police, who later arrested Fister on-site and charged him with wanton endangerment in the first degree. Ultimately, the Grand Jury of Scott County returned an indictment charging Fister with three counts of wanton endangerment in the first degree, one count each for Kelly, Combs and Brown.
The trial court conducted a bench trial and ultimately found Fister guilty of one count of wanton endangerment in the first degree as to the count related to Combs and acquitted him of the other two charges related to Kelly and Brown. The trial court fined Fister $5,000 and sentenced him to one-year imprisonment, which the court subsequently probated for a period of five years with Fister serving five weekends in jail.
After the court rendered its verdict on September 7, 2001, Fister filed a motion for judgment notwithstanding the verdict, for a new trial and for additional findings of fact on September 14, 2001 (motion of September 14, 2001). The trial court denied the motion, precipitating this appeal.
Fister raises three arguments on appeal. First, Fister contends that his conviction must be reversed because the Commonwealth produced insufficient evidence at trial to support the conviction of wanton endangerment in the first degree. Second, Fister argues that the trial court violated his due process rights when it arbitrarily convicted him of one count of wanton endangerment and acquitted him on another count when the evidence to support both counts was "virtually" identical. Finally, Fister alleges that a supervisor at Columbia Gas improperly communicated with the three prosecution witnesses during the trial, which actions warrant a new trial.
As a preliminary matter, we hold that Fister failed to properly preserve for appellate review any of the three arguments set out above. We will discuss each argument in turn.
The first issue on appeal is sufficiency of the evidence presented against Fister to support his conviction. Fister asserts that he preserved this argument in his motion of September 14, 2001, when he requested specific findings of fact regarding each element of the offense even though he did not specifically allege insufficient evidence. The proper method, however, for preserving this argument for our review is a motion for directed verdict alleging insufficiency of evidence at the close of the Commonwealth's case. See Baker v. Commonwealth, Ky., 973 S.W.2d 54, 55 (1998). Then, Fister should have renewed his motion for directed verdict at the close of all the evidence, thus allowing the trial court the opportunity to pass on the issue in light of all the evidence. See id.
Notwithstanding trial counsel's failure to preserve the insufficient evidence argument, Fister asks us to review the alleged error under Rule 10.26 of the Kentucky Rules of Criminal Procedure (RCr 10.26). RCr 10.26 states "[a] palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error." Because we have held that insufficient evidence to support a conviction amounts to palpable error affecting the substantial due process rights of a defendant, we will consider the issue even though it was not properly preserved. See Perkins v. Commonwealth, Ky.App., 694 S.W.2d 721, 722 (1985).
On the merits, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)(emphasis in original). Such a standard
gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.
The trial court convicted Fister of one count of first degree wanton endangerment of Charles Combs. "A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person." KRS 508.060(1). A defendant 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).
In this case, the Commonwealth met its burden in proving each of the necessary elements of first degree wanton endangerment. The Commonwealth established that Fister was a professional engineer who was well aware of the danger in operating heavy construction machinery close to an individual like Combs who was engaged in repairing a ruptured gas line and who was not paying attention to Fister. In addition, Fister had at least 500 pounds of gravel in the bucket of the backhoe. In order to dump the gravel as Fister intended, he had to raise the bucket up, in very close proximity to Combs who was hunched over. Moreover, as Combs had not yet completed the repair to the gas line, gas was escaping and could have easily been ignited by any number of factors present on a construction work site located by a heavily traveled roadway. Finally, had the backhoe slipped or the bucket slipped or the gas ignited, Combs would have sustained serious physical injury or death.
The second issue on appeal is the trial court violated Fister's due process rights when it arbitrarily convicted him of one count of wanton endangerment and...
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