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Culver v. Commonwealth

Court of Appeals of Kentucky

September 22, 2017

CHRISTOPHER CULVER APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         APPEAL FROM NELSON CIRCUIT COURT HONORABLE JOHN DAVID SEAY, JUDGE ACTION NO. 14-CR-00178

          BRIEF FOR APPELLANT: Kathleen K. Schmidt Department of Public Advocacy Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General for Commonwealth of Kentucky Jeffrey Ray Prather Assistant Attorney General Frankfort, Kentucky

          BEFORE: COMBS, D. LAMBERT AND THOMPSON, JUDGES.

          OPINION

          LAMBERT, D., JUDGE.

         Christopher 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.

         After 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 endangerment charge.

         I. FACTUAL AND PROCEDURAL HISTORY

         Culver's 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.

         At 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.

         As he 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.

         Riley, 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.

         Phillips 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 red car.

         Medley's 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.

         On 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 vehicle.

         At 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.

         Culver 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.

         The 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 appeal followed.

         II. ANALYSIS

         A. STANDARD OF REVIEW

         When 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.

         On 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 ...


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