RENDERED: FEBRUARY 26, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0164-MR
LAMONTE AKIO WILLIAMS APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 16-CR-01162-002
COMMONWEALTH OF KENTUCKY APPELLEE
AND NO. 2019-CA-0227-MR
D’MARKEO CHAVEZ TAYLOR APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 16-CR-01162-003
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.
KRAMER, JUDGE: Lamonte Akio Williams and D’Markeo Chavez Taylor
appeal their convictions for wanton endangerment, first degree, in the Fayette
Circuit Court. This Court held this matter in abeyance pending resolution of two
companion cases in the Kentucky Supreme Court, 2019-SC-0066-MR and 2019-
SC-0138-TG.1 Those cases are now final. After careful review of this matter and
the decision by the Kentucky Supreme Court in the companion cases, we affirm.
On the night of October 16, 2016, at approximately 3:50 a.m., fifteen-
year-old Trinity Gay was tragically shot through the chest while socializing with
friends in the parking lot of the Cook Out restaurant in Lexington, Kentucky. She
died from her wound shortly thereafter.
Taylor and his friend, Raekwon Berry, were at the Cook Out earlier in
the evening of October 16, 2016. Taylor called his father, Chazerae Taylor2 and
told him that he and Berry had been robbed of a gun and cash while there.
1
See Taylor v. Commonwealth, __S.W.3d__, Nos. 2019-SC-0066-MR, 2019-SC-0138-TG,
2020 WL 6390211 (Ky. Oct. 29, 2020) (those cases were finalized on February 18, 2021, and
designated to be published).
2
Both counsel and witnesses referred to Chazerae Taylor as “Chaz” throughout the trial. We use
Chazerae to be in conformity with the name used in the companion Supreme Court cases.
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Chazerae agreed to return to the Cook Out with Taylor and Berry to look for the
individual who allegedly robbed them. Taylor, who was driving, picked up
Chazerae and headed back to the Cook Out. On the way, they picked up Williams
and Tovon McFarland, who were told of the robbery on the way to the restaurant.
It is undisputed that Taylor, Chazerae, and Williams had guns in their possession
when they arrived.
The parking lot of the Cook Out was crowded that night, which was
described as not being unusual because the parking lot was known as a popular
hang-out area. The mood there that evening has been described as “tense.”
Williams eventually told police that when they arrived at the Cook Out, people in
the parking lot were “mean mugging” him, i.e., reaching into their pockets as if to
signal they were grabbing a gun. Video surveillance shows that upon Chazerae’s
exiting the vehicle, he fired shots into the air while standing directly outside of the
Cook Out. At this point, the record shows that shots were then fired from multiple
people both in and around the Cook Out parking lot.3 Williams, who was standing
next to Chazerae in the surveillance video, fired his gun into the air at least twice.
3
Three cartridge cases collected from the scene were fired from Taylor’s gun. Numerous spent
cartridge casings were recovered from the scene that were fired from guns that were never
identified. Multiple witnesses testified seeing individuals firing guns and hearing gunshots, but
no witness could affirmatively identify any of the shooters. In their subsequent interviews with
law enforcement, Williams, Taylor, Chazerae, and D’Vonta Middlebrooks admitted to firing
guns in the Cook Out parking lot that evening. Law enforcement recovered only the guns used
by Taylor and Williams.
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Taylor, who was at the front side of the Cook Out, also fired his gun into the air.
Taylor also admitted to firing shots from his vehicle as the group was leaving.4
D’Vonta Middlebrooks, who was also in the parking lot that night, fired shots from
a mulched area between the Cook Out and the neighboring Waffle House.
Tragically, in the ensuing and needless chaos, a bullet from a .45 caliber gun struck
and killed Trinity Gay. Although the shooter has never been identified, four
individuals were charged in response to events that night: Williams, Taylor,
Middlebrooks, and Chazerae.
In a joint trial, a jury convicted Williams on five counts of wanton
endangerment, first degree, and recommended a sentence of one year on each
count, to run consecutively, for a total of one year’s incarceration. The circuit
court sentenced Williams accordingly but probated his sentence for five years. The
same jury convicted Taylor of one count of wanton endangerment, first degree, and
recommended a sentence of fifteen months’ incarceration.5 The circuit court
4
When police arrived at Taylor’s house to question him, his blue Ford Fusion was covered in
bullet holes and had a smashed rear window.
5
We note that, although Taylor admitted to also firing the gun from his vehicle when fleeing the
Cook Out, he was charged with only one count of wanton endangerment, first degree, and the
jury instructions stated, in relevant part, “[t]hat in this county on or about October 16, 2016, and
before the finding of the indictment herein, [Taylor] fired multiple shots from a handgun in the
parking lot of the Cook Out restaurant[.]” As pointed out in Taylor’s reply brief to this Court, in
closing arguments, the Commonwealth described in detail only the shots fired while Taylor was
standing in the Cook Out parking lot.
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sentenced Taylor according to the jury’s recommendation but probated his
sentence for five years. These appeals followed. Middlebrooks and Chazerae
were also convicted by the jury.6
Both Williams and Taylor claim that the circuit court erred by failing
to grant their separate motions for a directed verdict on the charges of wanton
endangerment, first degree. They argue that they fired their guns into the air;
therefore, the circumstances did not manifest “extreme indifference to the value of
human life” as mandated for a conviction of wanton endangerment, first degree,
under KRS7 508.060. Williams also claims that the jury should have been
instructed on a local city ordinance as a lesser included offense of wanton
endangerment, first degree. We disagree with each argument.
Regarding motions for a directed verdict, the Kentucky Supreme
Court has ruled
[w]hen deciding a motion for a directed verdict “the trial
court must draw all fair and reasonable inferences from
the evidence in favor of the Commonwealth. If the
evidence is sufficient to induce a reasonable juror to
believe beyond a reasonable doubt that the defendant is
6
Middlebrooks was convicted of one count of wanton endangerment, first degree, as well as
being a persistent felony offender, first degree. He was sentenced to fifteen years’ incarceration.
Middlebrooks’ appeal was dismissed by this Court for failure to file a timely notice of appeal.
See No. 2019-CA-0202-MR. Chazerae was convicted of wanton murder and four counts of
wanton endangerment, first degree. He received a sentence of twenty years’ incarceration, which
he appealed. The Kentucky Supreme Court upheld his conviction in Taylor v. Commonwealth,
__S.W.3d__, 2020 WL 6390211.
7
Kentucky Revised Statute.
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guilty, a directed verdict should not be given.”
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.
1991). Questions about the credibility and weight to be
given to the evidence are reserved to the jury. Id. “On
appellate review, the test of a directed verdict is, if under
the evidence as a whole, it would be clearly unreasonable
for a jury to find guilt, only then the defendant is entitled
to a directed verdict of acquittal.” Id. (citing
Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)).
Lamb v. Commonwealth, 510 S.W.3d 316, 325 (Ky. 2017).
“It should be remembered that the trial court is certainly authorized to
direct a verdict for the defendant if the prosecution produces no more than a mere
scintilla of evidence.” Sawhill, 660 S.W.2d at 5. In other words, as long as the
Commonwealth produces more than a scintilla of evidence against the defendant, a
motion for directed verdict should be denied.
A person is guilty of wanton endangerment “when, under
circumstances manifesting extreme indifference to the value of human life, he
wantonly engages in conduct which creates a substantial danger of death or serious
physical injury to another person.” KRS 508.060. “Wantonly” is defined in KRS
501.020(3), in relevant part, as
[a] person acts wantonly with respect to a result or to a
circumstance described by a statute defining an offense
when he is aware of and consciously disregards a
substantial and unjustifiable risk that the result will occur
or that the circumstance exists. The risk must be of such
nature and degree that disregard thereof constitutes a
gross deviation from the standard of conduct that a
reasonable person would observe in the situation.
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“Thus, wantonness is the awareness of and conscious disregard of a risk that a
reasonable person in the same situation would not have disregarded.” Robertson v.
Commonwealth, 82 S.W.3d 832, 835 (Ky. 2002) (emphasis added).
Both Williams and Taylor argue that the circuit court should have
granted their motions for a directed verdict because the evidence produced at trial
showed only that they fired into the air, not into the crowd of people, in the Cook
Out parking lot. According to them, the circumstances did not manifest extreme
indifference to the value of human life. In upholding Chazerae’s conviction, the
Kentucky Supreme Court in Taylor looked to the elements of causation provided in
KRS 501.060(3)-(4) which state, in relevant part
(3) When wantonly or recklessly causing a particular
result is an element of an offense, the element is not
established if the actual result is not within the risk of
which the actor is aware or, in the case of recklessness,
of which he should be aware unless:
(a) The actual result differs from the
probable result only in the respect that a
different person or different property is
injured or affected or that the probable
injury or harm would have been more
serious or more extensive than that caused;
or
(b) The actual result involves the same kind
of injury or harm as the probable result
and occurs in a manner which the actor
knows or should know is rendered
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substantially more probable by his
conduct.
(4) The question of whether an actor knew or should
have known the result he caused was rendered
substantially more probable by his conduct is an issue
of fact.
See Taylor, __S.W.3d at __, 2020 WL 6390211 at *3.
Further, the Kentucky Supreme Court has looked to the 1974
Commentary to KRS 501.060, noting
Once an act is found to be a cause in fact of a result and a
substantial factor in bringing about that result, it is
recognized as the proximate cause unless another cause,
independent of the first, intervenes between the first and
the result. And even then the first cause is treated as the
proximate cause if the harm or injury resulting from the
second is deemed to have been reasonably foreseeable by
the first actor.
Robertson v. Commonwealth, 82 S.W.3d 832, 836 (Ky. 2002); Taylor, __S.W.3d at
__, 2020 WL 6390211 at *4.
In other words, the fact finder must look to whether Williams and
Taylor knew or should have known that firing their guns in the parking lot of the
Cook Out made it substantially more probable that others would return gunfire,
thus putting others in the parking lot at serious physical injury and/or death. See
id.
-8-
Because Chazerae made the same legal arguments to the Kentucky
Supreme Court that Williams and Taylor make before us, we look to our highest
Court’s analysis to decide the issue:
Case law is clear that a wide variety of actions
under differing circumstances may constitute aggravated
wanton conduct. In addressing the sufficiency of the
evidence for wanton endangerment, this Court has held
that “[f]iring a weapon in the immediate vicinity of
others is the prototype of first degree wanton
endangerment.” Swan v. Commonwealth, 384 S.W.3d
77, 102 (Ky. 2012) (quoting Robert G. Lawson &
William H. Fortune, Kentucky Criminal Law § 9-4(b)(2)
at 388, and n.142 (1998)) (citations omitted). In Swan,
the defendants, armed with handguns, invaded and
robbed a home, firing into the ceiling, as well as toward
specific victims in the living room located in the front of
the home. 384 S.W.3d at 84-86. This Court concluded
that a directed verdict should have been granted on first-
degree wanton endangerment regarding the person who
was hiding in the back bedroom of the house, as no proof
was presented that the defendant shot in her direction.
Id.
Contrast the holding in Swan to Hall,[8] wherein we
found sufficient evidence to uphold first-degree wanton
endangerment convictions for children who were
somewhere inside the house that the defendant shot
through from across the street using a scoped .30-06 deer
rifle, killing the children’s parents. 468 S.W.3d at 829.
We analogized those facts to Paulley v. Commonwealth,
323 S.W.3d 715 (Ky. 2010), in which the Court upheld
the trial court’s denial of a directed verdict on nine
counts of wanton endangerment, one for each person
present in the home at the time the defendant fired three
8
Hall v. Commonwealth, 468 S.W.3d 814 (Ky. 2015).
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shots from a shotgun into the closed doorway of the
home. Id. at 723, 726. In affirming the denial of the
directed verdict, the Paulley court did not consider the
precise location of each of the victims inside the home,
instead emphasizing that with respect to wanton
endangerment, a single gunshot can endanger multiple
people.
The determination of whether the defendant’s
conduct is “wanton” is one for the jury to make,
considering the circumstances of the case. See KRS
507.020 Kentucky Crime Commission/LRC Commentary
(1974). “Typical of conduct contemplated for inclusion
in ‘wanton’ murder is: shooting into a crowd, an
occupied building or an occupied automobile; placing a
time bomb in a public place; or derailing a speeding
locomotive.” Id.
A reasonable jury could have concluded that
[Williams and Taylor] wantonly fired multiple shots into
the air, amidst a crowd of people during the early
morning hours, which set into motion the foreseeable
response gunfire that resulted in Gay’s death and created
a substantial danger of death or serious physical injury to
the four people in her immediate vicinity. See e.g.,
Phillips v. Commonwealth, 17 S.W.3d 870 (Ky. 2000)
(upholding defendant’s wanton murder conviction since a
jury could “reasonably conclude that a person who
deemed it necessary to arm himself before going to that
neighborhood [to purchase crack cocaine from a street
dealer] would have been aware of the risk that others in
the neighborhood . . . would also be armed, and if fired
upon, would return fire[ ]”). The four people in Gay’s
vicinity, for whom [Williams] was convicted of first-
degree wanton endangerment, all testified at trial as to
their location when the bullets were fired and their
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nearness to Gay when she was shot.[9] Their testimony,
and all testimony presented, was for the jury to assess
and weigh. See Morgan v. Commonwealth, 421 S.W.3d
388, 393 (Ky. 2014) (“[W]hen the evidence is
contradictory, the credibility of witnesses and the weight
to be given to sworn testimony are for the jury to
decide[]” (citation omitted)).
Taylor, __S.W.3d at __, 2020 WL 6390211, at *4-5 (footnotes omitted).
Although Chazerae fired the initial shots into the air that night, both
Williams and Taylor arrived at the Cook Out armed and looking for someone
whom they believed to be armed based on Taylor’s account of the robbery earlier
in the evening. Although Williams later told police that he went along only to get
something to eat, it was the jury’s province to believe or disbelieve that evidence.
The parking lot was crowded, as it was known to be. While Williams and Taylor
shot into the air, they “knew the crowd would panic and disperse, and [they]
counted on it. Forensic evidence showed that multiple people returned fire, a
testament to the likelihood that a dangerous reaction to [their] provocation might
occur. When bullets start flying in a crowd of people, no one should be surprised
when someone gets shot.” Id. at *5.
The evidence was sufficient to induce a reasonable juror to believe
beyond a reasonable doubt that Williams and Taylor were guilty. Accordingly, the
9
Williams was convicted of five counts of wanton endangerment, first degree, related to Trinity
Gay and the four individuals in her vicinity when she was shot. Taylor was convicted of one
count of wanton endangerment unrelated to any specific individual in the Cook Out parking lot.
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circuit court did not err in denying Williams’ and Taylor’s motions for a directed
verdict.
We are also unpersuaded that Williams was entitled to a jury
instruction based on violation of a local city ordinance. The jury was instructed on
first-degree wanton endangerment and second-degree wanton endangerment as a
lesser included offense. Williams has failed to demonstrate that violation of the
local ordinance is a lesser included offense of wanton endangerment, first degree,
or that such an instruction by the circuit court would have been proper under any
circumstance. “The fact that evidence at trial could support a guilty verdict on an
uncharged offense that is less serious in nature or less difficult to prove than a
charged offense does not establish that the former is a lesser offense which is
necessarily included in the latter.” Hart v. Commonwealth, 768 S.W.2d 552, 553
(Ky. App. 1989). Therefore, we discern no error.
Accordingly, the judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT BRIEF FOR APPELLEE:
LAMONTE AKIO WILLIAMS:
Andy Beshear
Abe Mashni Attorney General of Kentucky
Lexington, Kentucky
Kristin L. Conder
Assistant Attorney General
Frankfort, Kentucky
BRIEFS FOR APPELLANT BRIEF FOR APPELLEE:
D’MARKEO CHAVEZ
TAYLOR: Andy Beshear
Attorney General of Kentucky
Emily Holt Rhorer
Frankfort, Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky
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Lamonte Akio Williams v. Commonwealth of Kentucky
Combined Opinion