FROM NELSON CIRCUIT COURT HONORABLE JOHN DAVID SEAY, JUDGE
ACTION NO. 14-CR-00178
FOR APPELLANT: Kathleen K. Schmidt Department of Public
Advocacy Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General for Commonwealth
of Kentucky Jeffrey Ray Prather Assistant Attorney General
BEFORE: COMBS, D. LAMBERT AND THOMPSON, JUDGES.
LAMBERT, D., JUDGE.
Culver appeals the multiple convictions and sentences handed
down by the Nelson Circuit Court following a two-day jury
trial in this matter. He asks this Court to review whether
the trial court appropriately denied his directed verdict
motion on each count, and whether double jeopardy protections
preclude conviction on a certain combination of his charges.
careful review, we conclude that the evidence was sufficient
to allow the jury to consider the first-degree wanton
endangerment, the theft by unlawful taking, fleeing and
evading police, and persistent felony offender
("PFO") charges. We also conclude that double
jeopardy does preclude convictions on the combination of
second-degree wanton endangerment and first-degree fleeing or
evading. Consequently, we affirm the convictions for the
first-degree wanton endangerment, theft by unlawful taking,
fleeing or evading, and PFO charges. On the other hand, we
vacate the conviction on the second-degree wanton
FACTUAL AND PROCEDURAL HISTORY
conviction stems from a confluence of events beginning in the
early morning hours of December 15, 2012. Audrey Dragoo
picked up her boyfriend and drove him home in his vehicle
after a night of drinking, leaving her own red Hyundai
Tiburon parked in a church parking lot in Bardstown.
Elsewhere, Nelson County Deputy Reece Riley responded to a
domestic disturbance call from which a suspect had escaped in
a red vehicle. Riley requested that other law enforcement
officers be on the lookout for a red car in the area.
approximately 2:15 A.M., while on patrol, Bardstown Police
Officers Michael Medley and Nathan Phillips spotted a red car
parked in a church parking lot. Phillips observed from a
cruiser in the parking lot of a gas station across the street
from the church as Medley, in his own cruiser, approached the
red car in the church parking lot. Medley observed a man
standing between the passenger side of the red car and a
beige Buick LeSabre. The man retreated into the Buick and
began to drive away slowly as Medley entered the parking lot.
grew closer, Medley discovered that the red car had been
broken into, and radioed Phillips. Phillips engaged his light
bar and siren to signal the Buick to pull over. Rather than
comply, the Buick fled down Springfield Road at approximately
65-70 miles per hour, with Phillips in pursuit and Medley
behind Phillips. The Buick led the officers on an eight mile
chase along several winding roads at speeds ranging from
65-80 miles per hour.
upon learning of the chase, and believing the driver of the
Buick might be his own missing suspect, joined the pursuit
from a different location. In his attempt to catch up to the
other vehicles, he drove at an estimated speed of 90 miles
per hour. Riley eventually lost control of his vehicle going
around a curve, skidded off an embankment, and hit a tree.
Though uninjured, Riley could no longer continue the pursuit.
and Medley, meanwhile, had lost sight of the Buick, because
it was driving so much faster than they believed they could
safely pursue. They discontinued their own pursuit after
losing sight of the Buick and learning of Riley's crash.
Medley returned to the church parking lot to investigate the
investigation of the red car in the church parking lot turned
up significant evidence. He found the passenger side window
broken, with shards of glass littering the front passenger
seat and floor. Medley also found blood on the passenger seat
headrest, on the shift knob, and the seats, which he
collected for DNA analysis. The car's stereo had also
been ripped out. Upon running the license plate, Medley
learned that the vehicle was owned by Audrey Dragoo, who
provided law enforcement with an inventory of missing items
the following day. Dragoo estimated that the total value of
the items stolen from her vehicle at $929.
January 22, 2013, Detective Lynn Davis of the Bardstown
Police Department was at Culver's home investigating an
unrelated matter when he noticed a Buick fitting the
description of the one involved in the vehicle break-in and
chase with Medley and Phillips the previous month. Davis ran
the plate, revealing that Culver's father owned the
vehicle. Davis also photographed the Buick, which
Culver's acquaintances identified as Culver's
Davis' request, forensic technician, Katie Hartman,
arrived and performed a buccal swab on Culver. Subsequent
genetic testing would reveal a complete match-at all
loci-between the buccal swab taken from Culver and the blood
taken from Dragoo's car.
was indicted, and proceeded to trial. After the close of
evidence, Culver moved for directed verdict, which the trial
court denied. The jury convicted Culver of the following
offenses: two counts of wanton endangerment in the first
degree (of Medley and Phillips), one count of misdemeanor
wanton endangerment in the second degree (of Riley), one
count of fleeing or evading police in the first degree, one
count of theft by unlawful taking of the value of $500 or
more, and being a PFO in the first degree. The two prior
felony convictions supporting the PFO charge came in 2009 in
Nelson Circuit Court and in 2010 in Jefferson Circuit Court.
jury recommended a PFO-enhanced sentence of 12 years to serve
on each of the felony counts, and 30 days for the
misdemeanor. The trial court sentenced Culver accordingly,
though directing the sentences be served concurrently. This
STANDARD OF REVIEW
ruling on a motion for directed verdict by a criminal
defendant, the trial court should only grant a defense motion
for directed verdict if the Commonwealth's offered proof
amounts to "no more than a mere scintilla of
evidence[.]" Acosta v. Commonwealth, 391 S.W.3d
809, 816 (Ky. 2013). The court is to examine the evidence as
a whole, assume the truth of the Commonwealth's evidence,
draw all fair and reasonable inferences in favor of the
Commonwealth, and refrain from intruding upon the jury's
role of evaluating weight and credibility. Id.
appeal, our review is limited to a determination that
"if, under the evidence [taken] as a whole, it would be
clearly unreasonable for a jury to find the defendant
guilty[.]" Wilburn v. Commonwealth, 312 S.W.3d
321, 323 (Ky. 2010) (citing Commonwealth v. Sawhill,
660 S.W.2d 3 (Ky. 1983)). Even contradicted proof is
sufficient to support a conviction if the ...