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Culver v. Commonwealth

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


          HUGHES, JUSTICE.

         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 Aug. 25, 2016) (unpublished), and like Willis, the evidence introduced at his trial was not sufficient to prove he created a substantial risk of serious physical injury or death, the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.


         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 ...

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