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McCargo v. Commonwealth

Court of Appeals of Kentucky

September 8, 2017

JARAD MCCARGO APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 14-CR-1125

          BRIEF FOR APPELLANT: Kathleen K. Schmidt Kentucky Department of Public Advocacy Frankfort, Kentucky Jason A. Hart Assistant Public Advocate Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky

          BEFORE: ACREE, COMBS AND D. LAMBERT, JUDGES

          OPINION AFFIRMING

          LAMBERT, D., JUDGE

         Jarad McCargo was convicted of multiple charges by a jury after he seriously injured a pedestrian while attempting to parallel park under the influence of alcohol. He brings this appeal from the Fayette Circuit Court judgment, arguing that he was entitled to a directed verdict on the charge of assault in the first degree because there was insufficient evidence to support a finding that he acted under circumstances manifesting extreme indifference to the value of human life as required under Kentucky Revised Statutes (KRS) 508.010(1)(b).

         McCargo and his wife, Denise, went out for drinks one evening in Lexington. Denise, who drove her Ford Explorer SUV, described herself as the "designated driver." According to McCargo, he had a mixed cranberry and vodka drink before they left home. The couple went first to the Euclid Avenue area of Lexington, at around 9:00 p.m. There were only a few people there at that time, and a bouncer at the Art Bar, a nightclub, recommended that they return in an hour. The couple went to another bar at the intersection of Newtown Pike and Georgetown Road. Because Denise had difficulty parallel parking the SUV, McCargo parked it for her. The couple ordered margaritas at the bar where they stayed for about forty minutes before driving back to Euclid Avenue.

         When they arrived, they looked for street parking near the Art Bar and spotted a parking space in front of another nearby bar, The Beer Trappe. Noel Espino, a captain in the Army National Guard, was standing outside the Beer Trappe, speaking with his wife on his mobile phone. McCargo switched seats with Denise in order to parallel park her vehicle. He tried to back into the parking space, but the SUV was at the wrong angle. He pulled out and backed in again at a sharper angle, then hit the gas pedal rather than the brake. The SUV accelerated in reverse and crushed Espino against the Beer Trappe building. Espino's pelvis was crushed, his femurs were broken and his internal organs were damaged. He had to undergo dialysis because his kidneys had ceased to function. Ultimately, Espino's leg and part of his pelvis had to be amputated. Peter Alvarez and Dutch Inman, two of Espino's friends who were inside the bar, received minor injuries. The Beer Trappe sustained damages in the amount of $26, 330 in repairs.

         Immediately following the accident, McCargo panicked and drove away. Denise urged him to return, but he kept going. After he turned right off Euclid Avenue, she grabbed the gearshift and stopped the SUV. She jumped out and ran back to the accident scene, and told police what had happened. McCargo meanwhile drove home. When the police arrived there to look for him, they found him hiding behind some garbage cans. McCargo claimed that he was unaware that he had even struck the building.

         A few hours after the crash, the police obtained a sample of McCargo's blood, which showed a blood-alcohol level of .122%.

         McCargo was tried on the following charges: assault in the first degree, leaving the scene of an accident, criminal mischief in the first degree, two counts of assault in the fourth degree (relating to the injuries suffered by Alvarez and Inman), operating a motor vehicle while under the influence, and failure of owner to maintain required insurance.

         McCargo's attorney conceded to the jury that McCargo was guilty of all the charges except assault in the first degree. He argued that having a couple of drinks and then parallel parking was not a circumstance amounting to an extreme indifference to the value of human life. Following his trial, McCargo was convicted of all the charges and sentenced to serve a total of ten years. This appeal followed.

         On appeal, McCargo argues that he was entitled to a directed verdict on the charge of assault in the first degree.

A motion for a directed verdict of acquittal should only be made (or granted) when the defendant is entitled to a complete acquittal[, ] i.e., when, looking at the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, under any possible theory, of any of ...

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