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NOT TO BE PUBLISHED OPINION
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RENDERED: MARCH 25, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0141-MR
JIMMY R. BALDWIN APPELLANT
ON APPEAL FROM HARLAN CIRCUIT COURT
V. HONORABLE KENT HENDRICKSON, JUDGE
NO. 18-CR-00169
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On a motion for directed verdict, a trial court must view the evidence as a
whole in favor of the Commonwealth. If the Commonwealth produces more
than a mere scintilla of evidence, then the defendant’s motion should be
denied. In this case, the primary issue we are to determine is whether the
Harlan Circuit Court properly denied Jimmy Baldwin’s motion for a directed
verdict on three counts of wanton endangerment first degree and one count of
fleeing or evading police first degree. Upon a careful review of the record and
the testimony, we hold that the trial court did not err and therefore affirm its
judgment of conviction whereby it sentenced Baldwin to 20 years.
I. Facts and Procedural Background.
In the early morning of June 28, 2017, Officer Jonathan Franklin, of the
Cumberland Police Department, was parked on the side of U.S. Highway 119 at
the Plaza Motel, just south of Cumberland. Fifteen minutes previously, he had
bought coffee at the Speedway gas station in Cumberland, where he noticed a
black Chevrolet Cobalt with three occupants pull in to the Speedway where
they purchased food, drinks and cigarettes. While sitting on the side of the
highway, facing northbound, he observed the black Cobalt rounding a
southbound curve at such a high rate of speed that it veered into the
northbound lane before correcting back into its proper lane. Officer Franklin
estimated it was travelling at 90 miles per miles per hour (m.p.h.). The speed
limit on that stretch of highway is 55 m.p.h. Officer Franklin immediately
turned onto the southbound lane in pursuit and activated his emergency
equipment, siren and blue lights. He testified at trial that he reached a speed
of 120 m.p.h. The pursuit ended up being very short as the Cobalt pulled over
after about a mile, where the driver exited the vehicle and ran to railroad tracks
parallel to the highway to make an escape. After quickly questioning the two
occupants remaining in the Cobalt, Devin Foster and Jordan Massingale, who
identified Jimmy Baldwin as the driver, Officer Franklin briefly chased
Baldwin, observing him in a culvert beneath the railroad, before losing him.
At trial, Foster testified that he was in the Cobalt’s front passenger seat
as it left Cumberland and that Baldwin was driving.1 He stated that at one
point he looked at the speedometer and Baldwin was driving 130 m.p.h. Foster
further testified he was uncertain why Baldwin was driving so fast, but that he,
1 Foster admitted to having consumed two beers, but did not implicate Baldwin
in the consumption of alcohol.
2
Foster, was scared since he had had bad experiences with car wrecks and
friends had been killed.
Following Foster’s testimony, the Commonwealth closed its proof and
rested its case. Baldwin did not testify. Baldwin moved for a directed verdict,
which the trial court denied. Baldwin also tendered jury instructions including
lesser offenses of wanton endangerment second degree and fleeing or evading
police second degree. The trial court did not instruct on the lesser-included
offenses. The jury convicted Baldwin of three counts of wanton endangerment
first degree, one each as to Officer Franklin, Foster and Massingale, and one
count of fleeing or evading police in the first degree. The jury recommended
one-year sentences on each count, enhanced to twenty years by virtue of
persistent felony offender in the first degree. The trial court imposed the
twenty-year sentence recommended by the jury. Baldwin appeals to this court
as a matter of right. Ky. Const. § 110(2)(b).
II. Standard of Review.
In this appeal, Baldwin claims two errors. First, the trial court failed to
grant his motion for directed verdict. Our standard of review on such an issue
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.” Ray v. Commonwealth, 611 S.W.3d 250, 266 (Ky. 2020) (quoting
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991)). Second, the trial
court erred in failing to instruct the jury as to wanton endangerment second
degree and fleeing or evading police second degree. The standard of review as
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to the failure to give a requested instruction, whether analyzed under a de novo
or an abuse of discretion standard, is merely “whether the evidence would
permit a reasonable juror to make the finding the instruction authorizes.”
Allen v. Commonwealth, 338 S.W.3d 252, 255 n.1 (Ky. 2011).
III. Analysis.
A. Directed Verdict.
Baldwin’s first claim is that the trial court erred in failing to direct a
verdict of acquittal on these charges. In Culver v. Commonwealth, we noted,
On the motion for a directed verdict, the single controlling question
for the trial court is whether the Commonwealth has sustained the
burden of proof by more than a scintilla of evidence, with such
evidence being of probative value and of the quality to induce
conviction in the minds of reasonable men. James v. England, 349
S.W.2d 359, 361 (Ky. 1961) (citation omitted). When the evidence
is insufficient to induce reasonable jurors to believe beyond a
reasonable doubt that a defendant is guilty, a verdict may be
directed. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.
1991). When assessing the evidence, the trial court must consider
the Commonwealth’s evidence as a whole, assume the evidence is
true, and draw all reasonable inferences from the evidence in favor
of the Commonwealth. Id. The trial court may not consider
questions of weight and credibility, those being the province of the
jury. Id.
590 S.W.3d 810, 812–13 (Ky. 2019).
Proof of wanton endangerment in the first degree required a showing that
“under circumstances manifesting extreme indifference to the value of human
life, [Baldwin] wantonly engage[d] in conduct which created a substantial
danger of death or serious physical injury to another person.” KRS2
2 Kentucky Revised Statutes.
4
508.060(1). Similarly, proof of fleeing or evading police in the first degree
required that Baldwin operated “a motor vehicle with intent to elude or flee, . . .
knowingly or wantonly disobey[ed] a direction to stop his . . . motor vehicle,
given by a person recognized to be a police officer, and . . . [b]y fleeing or
eluding, [Baldwin] . . . cause[d], or create[d] substantial risk, of serious
physical injury or death to any person or property[.]” KRS 520.095(1)(a)4.
With respect to the results and circumstances described by these
criminal offenses, “wantonly” is defined as “aware[ness] of and conscious[]
disregard [of] a substantial and unjustifiable risk that the result will occur or
that the circumstance exists.” KRS 501.020(3). As to the risk, it “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.” Id. “Serious physical injury” is “physical injury which creates a
substantial risk of death, or which causes serious and prolonged
disfigurement, prolonged impairment of health, or prolonged loss or
impairment of the function of any bodily organ.” KRS 500.080(15).
In Culver, we extensively discussed multiple cases from both this Court
and the Court of Appeals analyzing wanton endangerment and fleeing or
evading the police. 590 S.W.3d at 814-17. We concluded that “whether the
defendant’s act of fleeing police created a ‘substantial risk’ of death or serious
physical injury depends on the proof and reasonable inferences that can be
drawn from the evidence, with each case presenting its own unique
5
circumstances.” Id. at 817 (citing Bell v. Commonwealth, 122 S.W.3d 490, 497
(Ky. 2003)).
In this case, the proof of wanton endangerment first degree was satisfied
by Officer Franklin’s observation that Baldwin negotiated a curve on U.S.
Highway 119 at an estimated 90 m.p.h. and veered into the oncoming lane to
negotiate the curve. Then, as Officer Franklin pursued, Baldwin sped up to
120 m.p.h. Foster corroborated this testimony that Baldwin was driving at 130
m.p.h. before eventually pulling over and exiting the Cobalt. Both Officer
Franklin and Foster testified as to being fearful of substantial injury or death
at that speed. Under Kentucky’s directed verdict standard and in order for a
jury to consider a criminal charge, more than a scintilla of evidence must be
adduced from which a reasonable juror could conclude a defendant is guilty.
Culver, 590 S.W.3d at 812-13. That standard is more than satisfied in this
case. We hardly need authority to recognize that excessive speed reduces
driver reaction time, increases the potential for a driver losing control of his or
her vehicle, reduces the effectiveness of protective equipment, increases
stopping distance after the driver perceives danger, and increases crash
severity leading to more severe injuries.3 In fact, in Culver, we affirmed the
convictions of wanton endangerment in the first degree and fleeing or evading
police in the first degree for Culver’s actions as they related to the pursuing
3 See Risky Driving/Speeding, U.S. Dep’t of Transp., Nat’l Highway Traffic
Safety Admin. https://www.nhtsa.gov/risky-driving/speeding (accessed Feb. 16,
2021).
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officers, and Culver, although speeding, was going much slower than Baldwin.
On two miles of U.S. Highway 150, Culver’s actions resulted in one of the
officers pursuing at 80 m.p.h. We acknowledge, as Baldwin argues, that
Officer Franklin’s pursuit of Baldwin occurred over a much shorter time and
distance, but importantly, the speed was much faster. Here, Officer Franklin
pursued at 120 m.p.h. where the posted speed limit was 55 m.p.h. And,
according to Foster, Baldwin reached 130 m.p.h. at one point. Accordingly, the
trial court did not err in denying Baldwin’s motion for a directed verdict.
B. Jury Instructions.
Baldwin’s second argument is that the trial court erred in failing to give
instructions on the lesser-included offenses of wanton endangerment in the
second degree and fleeing or evading police in the second degree.
The trial court ruled that instructions on lesser-included offenses, as
misdemeanors, were improper as time barred because their prosecution was
not brought within the one year preceding the indictment. The offenses
occurred in June 2018, and Baldwin was not indicted until October 2019. No
authority was advanced to support this holding,4 and the Commonwealth does
not so argue in this appeal. Instead the Commonwealth argues that Baldwin
4 The trial court’s initial ruling appears contrary to this Court’s holding in
Commonwealth v. Oliver, 253 S.W.3d 520, 525–26 (Ky. 2008) (stating that a criminal
defendant’s request for “a lesser-included-offense instruction on an expired
misdemeanor, . . . should [be] give[n] . . ., provided, of course, that the evidence
supports the instruction. Absent a contrary indication in the record, the defendant’s
request for such an instruction will operate as a waiver of his right to a statute of
limitations defense[]”). The trial court acknowledged its error in deciding Baldwin’s
motion for a new trial. Despite this acknowledgement, the trial court denied the
motion on the basis that “no reasonable juror could acquit on the principal charges.”
7
either invited or waived the error by not objecting to the trial court’s final
instructions. The Commonwealth’s argument is unpersuasive. Under RCr5
9.54(2), error with respect to the instructions is preserved “by an offered
instruction[.]” In this case, Baldwin preserved his objection. We therefore
address the merits of his argument.
Our case law recognizes that “a defendant has a right to have every issue
of fact raised by the evidence and material to the defense submitted to the jury
on proper instructions.” Allen, 338 S.W.3d at 255. This right includes
entitlement to “an instruction on any lawful defense which he has[,]” Hudson v.
Commonwealth, 202 S.W.3d 17, 20 (Ky. 2006), including instructions on lesser
included offenses. In Hudson we stated that “[a]lthough a lesser included
offense is not a defense within the technical meaning of those terms as used in
the penal code, it is, in fact and principle, a defense against the higher charge.”
Id. (citation and internal quotation marks omitted). No instruction is
warranted, of course, unless supported by the evidence, and thus “[a]n
instruction on a lesser included offense is appropriate if, and only if, on the
given evidence a reasonable juror could entertain a reasonable doubt of the
defendant’s guilt on the greater charge, but believe beyond a reasonable doubt
that the defendant is guilty of the lesser offense.” Osborne v. Commonwealth,
43 S.W.3d 234, 244 (Ky. 2001). In Allen, we held that “[a]n appellate court
likewise applies this ‘reasonable juror’ standard to a claim that the trial court
5 Kentucky Rules of Criminal Procedure.
8
erred by refusing to give a lesser included offense instruction.” 338 S.W.3d at
255. Thus, “[c]onsidering the evidence favorably to the proponent of the
instruction, we ask, as just noted, whether a reasonable juror could acquit of
the greater charge but convict of the lesser.” Id. (citing Thomas v.
Commonwealth, 170 S.W.3d 343 (Ky. 2005); Osborne, supra; Commonwealth v.
Wolford, 4 S.W.3d 534 (Ky. 1999)).
As noted above, the elements of wanton endangerment in the first degree
require extreme indifference to the value of human life, wanton conduct which
creates a substantial danger of death or serious physical injury to another
person. KRS 508.060(1). By contrast, wanton endangerment in the second
degree, omits the element of “extreme indifference to the value of human life”
and the wanton conduct only “creates a substantial danger of physical injury to
another person.” KRS 508.070(1). As to the charge of fleeing or evading, first
degree, includes the element that “[b]y fleeing or eluding, the person is the
cause, or creates substantial risk, of serious physical injury or death to any
person or property[.]” KRS 520.095(1)(a)4. By contrast, fleeing or evading
second degree omits this element. KRS 520.100.6
The question, therefore, is whether a reasonable juror could acquit
Baldwin of the first-degree offenses and find him guilty of the lesser offenses.
In Lawson v. Commonwealth, 85 S.W.3d 571 (Ky. 2002), overruled on other
6 Both degrees of fleeing or evading police include the elements of “operating a
motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a
direction to stop his or her motor vehicle, given by a person recognized to be a police
officer[.]” KRS 520.095(1)(a), 520.100(1)(b).
9
grounds by Hall v Commonwealth, 551 S.W.3d 7 (Ky. 2018), we recognized,
frankly, that in the vast majority of cases, the question of whether the actor’s
conduct “manifested extreme indifference to human life” or “create[d] a
substantial danger of death or serious physical injury” “is subject to reasonable
disagreement, and, therefore, the misdemeanor offense will typically be a
necessary lesser-included offense[.]” 85 S.W.3d at 576. In that case, the
evidence was that Lawson was speeding, ran stop lights, violated lane
discipline, and when he got on Interstate I-75 drove the vehicle at speeds
between 100 and 125 m.p.h. Id. Eventually, Lawson made a U-turn in the
grass median of the interstate, attempted to evade a police roadblock, hit the
guard rail, lost control of the vehicle, went airborne and ended up in the
median. Id. This court rejected the claim that Lawson was entitled to a
misdemeanor instruction. Id.
In this case, Baldwin did not attempt the extensive evasive action as
Lawson. However, Baldwin was going faster than Lawson, travelling on a non-
limited access highway, and when he was apparently going slower, 90 m.p.h.,
as estimated by Officer Franklin, he still exhibited erratic driving in using the
oncoming lane to negotiate a curve in the road.7 We conclude that the trial
7 Baldwin argues that his erratic driving negotiating the curve in Highway 119,
prior to Officer Franklin’s engaging his emergency equipment, should not be
considered in our analysis. While we might agree that it plays no role in our analysis
of the offenses involving Officer Franklin, Foster and Massingale were in the Cobalt
when Officer Franklin first observed it rounding the curve.
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court properly denied Baldwin’s request for instructions on the lesser-included
offenses.
IV. Conclusion.
For the foregoing reasons, we affirm the Harlan Circuit Court’s judgment.
All sitting. Minton, C.J.; Hughes, Keller, Lambert, Nickell and VanMeter,
JJ., concur. Conley, J., concurs in result only.
COUNSEL FOR APPELLANT:
Jennifer Leigh Wade
Erin Hoffman Yang
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Jenny Lynn Sanders
Assistant Attorney General
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