JAMES L. BATES, JR. v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: November 13, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001535-MR
JAMES L. BATES, JR.
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES E. KELLER, JUDGE
ACTION NO. 97-CR-000456
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * * * * * * * * * * *
BEFORE:
BUCKINGHAM, KNOX, AND SCHRODER, Judges.
BUCKINGHAM, JUDGE.
James L. Bates (Bates) appeals from a
judgment of the Fayette Circuit Court wherein he was sentenced to
twelve months in jail for the offense of second-degree wanton
endangerment (KRS 508.070) and other misdemeanors and violations.
Finding no error, we affirm.
On February 16, 1997, a motorist approached Officer
Thomas Johnston of the Lexington-Fayette County Police Department
and told him that a drunk driver was in the area.
Officer
Johnston proceeded in accordance with the motorist’s information
to an intersection where he observed a stopped vehicle.
Officer
Johnston approached the vehicle and observed Bates slumped over
the steering wheel while the vehicle’s motor was still running.
Officer Johnston testified that he noticed a strong smell of
alcohol about Bates and that he tapped Bates on the shoulder and
asked him to exit the vehicle.
Bates then accelerated the
vehicle and proceeded through the intersection.
Officer Johnston stated that he followed Bates, who was
driving thirty to forty miles per hour.
The maximum speed
allowed by law on the roads where the officer followed Bates was
thirty-five miles per hour.
Officer Johnston observed Bates
driving on both sides of the road and running stop signs.
When
Bates’s vehicle finally came to a stop, Bates exited the vehicle
but was quickly apprehended by the officer.
Bates was indicted for the felony offense of firstdegree wanton endangerment and was also indicted for the offenses
of operating a motor vehicle on a revoked or suspended license,
operating a motor vehicle while under the influence of alcohol,
attempting to elude a police officer, disregarding a stop sign,
and owning or operating a motor vehicle without insurance.
After
a trial by jury, Bates was convicted of the lesser included
offense of second-degree wanton endangerment as well as the other
-2-
misdemeanors and violations.1
In accordance with the jury’s
verdict, Bates was sentenced to twelve months in the county jail
for second-degree wanton endangerment; he received shorter jail
sentences and fines for the other offenses.2
This appeal
followed.
Bates’s first argument is that the trial court erred by
denying his motion for a directed verdict.
At the conclusion of
the presentation of all evidence, Bates’s counsel moved the court
to grant a directed verdict on the first-degree wanton
endangerment charge.
Counsel argued that there was insufficient
evidence that Bates committed the offense of first-degree wanton
endangerment but acknowledged that it was proper to submit to the
jury the lesser-included offense of second-degree wanton
endangerment.
The trial court denied Bates’s motion for a
directed verdict and instructed the jury that it could find Bates
guilty of first-degree wanton endangerment or guilty of the
lesser included offense of second-degree wanton endangerment.
The trial court’s instruction to the jury on second-degree
wanton endangerment read as follows:
INSTRUCTION NO. 3
COUNT 1
SECOND-DEGREE WANTON ENDANGERMENT
1
Bates was also indicted for the offense of carrying a
concealed weapon, but he pled guilty to that offense and was
sentenced to thirty days in jail. He was likewise indicted for
being a persistent felony offender in the first degree, but that
charge was dismissed.
2
Bates’s total maximum sentence was twelve months in jail.
See KRS 532.110(1)(b).
-3-
If you do not find the defendant guilty
under Instruction No. 2, you will find the
defendant guilty of Second-Degree Wanton
Endangerment under this Instruction if, and
only if, you believe from the evidence beyond
a reasonable doubt all of the following:
(a) That in this county on or about
February 16, 1997, the defendant drove his
vehicle on a public highway at excessive
speeds and disregarded traffic signals;
(b)
That he thereby wantonly created a
substantial danger of physical injury to
other people using the highway;
If you find the defendant guilty under
this instruction, you shall fix his
punishment, at confinement in the county jail
for a period not to exceed 12 months, at a
fine not to exceed $500.00, or at both
confinement and fine, in your discretion.
Bates complains that the trial court erred and should have
granted his directed verdict motion on the ground that the
Commonwealth failed to prove that he drove his vehicle at
excessive speeds, which was stated in the instructions as an
element of the offense which the jury must believe beyond a
reasonable doubt before finding him guilty.
He asserts that the
only evidence presented concerning the speed of his vehicle was
Officer Johnston’s testimony that Bates was driving thirty to
forty miles per hour in an area with a speed limit of thirty-five
miles per hour.
The Commonwealth argues that Bates is improperly making
different arguments to this court from those he made to the trial
court and that this court should not consider this argument.
-4-
See, e.g., Commonwealth v. Duke, Ky., 750 S.W.2d 432, 433 (1988);
Charles v. Commonwealth, Ky., 634 S.W.2d 407, 409 (1982); Kennedy
v. Commonwealth, Ky., 544 S.W.2d 219, 222 (1976).
In support of
its argument, the Commonwealth states that Bates did not object
to the giving of an instruction on second-degree wanton
endangerment.
We also note that Bates did not object to the
language in the instruction, although he did renew his motion for
a directed verdict without stating further specific grounds.
Regardless of whether Bates sufficiently preserved this
issue for our review, we determine that his argument on the issue
has no merit.
The standard for ruling on directed verdict
motions was set forth in Commonwealth v. Benham, Ky., 816 S.W.2d
186 (1991).
Benham provides that
[o]n motion for 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 guilty, a directed verdict should not be
given. For the purpose of ruling on the
motion, the trial court must assume that the
evidence for the Commonwealth is true, but
reserving to the jury questions as to the
credibility and weight to be given to such
testimony.
Id. at 187.
On appeal, “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.
Drawing all fair and reasonable inferences from the
evidence, a reasonable juror could have concluded that Bates was
-5-
driving at forty miles per hour, especially since Officer
Johnston testified that his thirty to forty mile per hour
estimate was “conservative.”
As forty miles per hour was in
excess of the legally permitted maximum speed, such testimony is
prima facie evidence that Bates was driving at excessive speeds.
Furthermore, given the fact that Bates had been
drinking and was not obeying traffic signals, the jury could
reasonably have found that Bates was driving at excessive speeds
even if he was only going thirty miles per hour.
See KRS
189.390(2) which states that “[a]n operator of a vehicle upon a
highway shall not drive at a greater speed than is reasonable and
prudent, having regard for the traffic and for the condition and
use of the highway.”
See also Potts v. Krey, Ky., 362 S.W.2d
726, 728 (1962), holding that “[a] motorist does not have an
absolute right to travel at the maximum speed limit.”
The trial
court’s denial of Bates’s motion for a directed verdict was
therefore not error.
Bates’s other argument is that he was improperly
charged with and convicted of wanton endangerment in violation of
his constitutional rights protecting him from double jeopardy.3
3
Bates does not comply with CR 76.12(4)(c)(iv) by noting
how, or if, this issue was preserved for appellate review. In
the past, Kentucky appellate courts have decided questions of
double jeopardy on their merits despite a lack of preservation of
the issue in the trial court. See, e.g., Sherley v.
Commonwealth, Ky., 558 S.W.2d 615 (1977). However, the Kentucky
Supreme Court has recently noted its “discomfort” with “such
elevated deference to double jeopardy principles[.]” Butts v.
Commonwealth, Ky., 953 S.W.2d 943, 945 (1997). See also Baker v.
(continued...)
-6-
Bates asserts that in addition to being charged with the specific
offenses of operating a motor vehicle under the influence,
attempting to elude a police officer, and disregarding a stop
sign, the Commonwealth also charged him with wanton endangerment
“for the same conduct” in violation of his rights protecting him
from double jeopardy.
This “same conduct” test is based on Grady
v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990),
which was interpreted by the Kentucky Supreme Court in
Commonwealth v. Burge, Ky., 947 S.W.2d 805 (1996), U.S. cert.
denied, 139 L.Ed.2d 323, 118 S.Ct. 422 (1997), to stand for the
proposition that “double jeopardy occurs when the ‘same conduct’
constituting one offense is used to prove an essential element of
another offense.”
Burge, supra, at 809.
In Burge, the Kentucky Supreme Court announced that
Kentucky courts would return to analyzing double jeopardy under
the principles set forth in Blockburger v. United States, 284
U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
811.
Burge, supra, at
Thus, in analyzing a double jeopardy claim, a court is “to
determine whether the act or transaction complained of
constitutes a violation of two distinct statutes and, if it does,
if each statute requires proof of a fact the other does not.
. . .
Id.
Put differently, is one offense included within another?”
Using this analysis, Bates’s argument fails.
3
(...continued)
Commonwealth, Ky., 922 S.W.2d 371, 374 (1996).
the issue.
-7-
We will address
To be convicted of first-degree wanton endangerment, a
person must manifest “extreme indifference to the value of human
life” while wantonly engaging “in conduct which creates a
substantial danger of death or serious physical injury to another
person.”
KRS 508.060(1).
To be convicted of second-degree
wanton endangerment, a person must “wantonly” engage in conduct
“which creates a substantial danger [of] physical injury to
another person.”
KRS 508.070.
None of the other offenses of
which Bates was convicted explicitly requires wanton conduct or a
substantial danger of physical injury, serious or otherwise, to
another.
Bates’s argument does not withstand the
Blockburger/Burge test.
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William H. Meadows, III
Fayette County Legal Aid
Lexington, KY
A. B. Chandler III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, KY
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
