ON
REVIEW FROM COURT OF APPEALS CASE NO. 2015-CA-001206-MR
NELSON CIRCUIT COURT NO. 14-CR-00178
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
OPINION
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(unpublished), and like Willis, the evidence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.
FACTUAL
AND PROCEDURAL BACKGROUND
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 ...