ISON (JASON RAY) VS. COMMONWEALTH OF KENTUCKY, ET AL.
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RENDERED: SEPTEMBER 26, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001007-MR
JASON RAY ISON
v.
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT III, JUDGE
ACTION NO. 05-CR-00317
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART,
AND REVERSING AND REMANDING IN PART
** ** ** ** **
BEFORE: VANMETER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
VANMETER, JUDGE: Jason Ray Ison appeals from a judgment entered by the
Letcher Circuit Court after a jury convicted him on multiple charges including
reckless homicide (three counts), first-degree assault, first-degree wanton
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
endangerment (two counts), and criminal mischief. We affirm in part, and reverse
and remand in part.
On the rainy afternoon of October 21, 2005, Ison was driving his Ford
Mustang on Highway 15 in Letcher County. His passengers included his wife
(Misty Ison), best friend (Jimmy Boggs), and cousin (Allen Bailey). An
eyewitness in the vehicle behind Ison testified that Ison drove within the speed
limit and safely negotiated a curve before losing traction and crossing lanes into
oncoming traffic, where his vehicle collided with a vehicle driven by Tracy Craft.
Ison’s three passengers died as a result of the collision, while Craft sustained a
severe injury to her leg. Craft’s two passengers were not injured.
Ison was taken to a hospital and treated for a concussion. Hospital
toxicology reports were negative for the presence of drugs or alcohol in Ison’s
blood, but positive for hydrocodone, marijuana, and Xanax in his urine. Both sets
of results were independently verified by the Kentucky State Police forensic crime
lab.
Ison was subsequently indicted on numerous charges arising out of the
collision. A jury convicted him of reckless homicide2 (three counts), first-degree
assault,3 first-degree wanton endangerment4 (two counts), criminal mischief,
having defective equipment on his car, and failing to have automotive insurance
2
KRS 507.050.
3
KRS 508.010.
4
KRS 508.060.
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and proper registration. He was acquitted on one count of driving under the
influence (DUI) and three counts of second-degree manslaughter. Ultimately, Ison
was sentenced to a total of 18.5 years’ imprisonment, including 18.5 years for firstdegree assault, and five years for each count of reckless homicide. This appeal
followed.
In essence, Ison argues that because there was insufficient proof of the
necessary mental states for the offenses of first-degree assault, first-degree wanton
endangerment, and reckless homicide, the trial court erred in overruling his
motions for a directed verdict and judgment notwithstanding the verdict (n.o.v.) as
to those charges. We agree.
Wanton behavior generally requires a person to be aware of, but
consciously disregard, “a substantial and unjustifiable risk” which is “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.” KRS
501.020(3). Second-degree manslaughter,5 second- or fourth-degree assault,6 and
second-degree wanton endangerment7 all involve such a level of wanton behavior.
Manslaughter, assault, or wanton endangerment each may be elevated
to a more serious offense if the wanton behavior occurred under “circumstances
manifesting extreme indifference to” human life. Thus, for instance, the use of a
5
KRS 507.040(1)(a).
6
KRS 508.020(1)(c) and KRS 508.030(1)(a).
7
KRS 508.070.
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motor vehicle in causing the death of another person may be elevated from seconddegree manslaughter to murder if the defendant’s actions occurred under
“circumstances manifesting extreme indifference to human life[.]” KRS
507.020(1)(b). Similarly, a defendant may be charged with first-degree assault or
first-degree wanton endangerment, rather than the lesser offense, if his or her
wanton behavior occurred under “circumstances manifesting extreme indifference
to the value of human life[.]” KRS 508.010(1)(b); KRS 508.060(1).
The sufficiency of evidence to prove such an elevated level of mental
culpability was recently reviewed by the Kentucky Supreme Court in Brown v.
Commonwealth, 174 S.W.3d 421, 425 (Ky. 2005). Examining “cases involving
unintentional vehicular homicides”8 to determine whether the elevated level of
culpability had been proven, the court stated:
In Hamilton v. Commonwealth, 560 S.W.2d 539 (Ky.
1977), we held that the evidence was sufficient where the
defendant, while under the influence of alcohol, drove his
vehicle at a rate exceeding the speed limit and entered an
intersection against a red light. Id. at 543. In Walden v.
Commonwealth, 805 S.W.2d 102 (Ky. 1991), overruled
on other grounds by Commonwealth v. Burge, 947
S.W.2d 805, 811 (Ky. 1996), we upheld a wanton murder
conviction where the defendant lost control of his vehicle
and crossed the center line while operating his vehicle
while under the influence of alcohol and at a high rate of
speed. Id. at 105. In Estep v. Commonwealth, 957
S.W.2d 191 (Ky. 1997), we held that the evidence was
sufficient where the defendant operated a motor vehicle
at a high rate of speed after ingesting five different
prescription drugs, one of which had debilitating effects
8
While the cases cited in Brown relate to situations of criminal homicide, the same issues of
mental culpability apply to the first-degree assault and first-degree wanton endangerment issues
now before us.
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of which she was aware, crossed the center line to pass
another automobile in a no-passing zone, failed to return
her vehicle to the proper lane, and caused a fatal
collision. Id. at 193. In Love v. Commonwealth, 55
S.W.3d 816 (Ky. 2001), we held the evidence sufficient
where the defendant was speeding, was intoxicated, and
did not slow down or attempt to stop upon seeing a police
car blocking the road but attempted to swerve around the
police car while traveling a reported seventy to ninety
miles per hour. Id. at 827. In Cook v. Commonwealth,
129 S.W.3d 351 (Ky. 2004), we held the evidence
sufficient where the defendant was intoxicated, admitted
he was aware of the risk of driving while intoxicated, and
lost control of his vehicle while operating it at a high rate
of speed because he wanted to show his passenger “what
his car had.” Id. at 362-63.
174 S.W.3d at 426. The court further described the types of behavior typically
thought to constitute “extreme indifference to human life,” such as shooting into a
crowd, derailing a train, or planting a bomb in a public place. Id. at 426.
Here, although Ison’s vehicle was described as having rear tires which
were extremely worn, the eyewitness to the collision testified that Ison was not
speeding or driving erratically before the tires lost traction immediately prior to the
collision. Further, the toxicology report showed no alcohol or drugs in Ison’s
blood. While hydrocodone, marijuana, and Xanax were found in his urine, the
evidence includes a letter from a forensic toxicologist to Ison’s attorney,
introduced as Commonwealth’s Exhibit 62, which states in part:
This motor vehicle collision occurred at
approximately 4:00 p.m. on the afternoon of October 21,
2005. Blood and urine samples were obtained from Mr.
Ison at 6:38 p.m. on October 21, 2005 and were
transported to the Kentucky State Police Laboratory.
Analysis of the urine sample for drugs of abuse disclosed
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the presence of hydrocodone, alprazolam, and
cannabinoid metabolites. It is clear from these results
that Jason Ison used hydrocodone, an opiate, and
alprazolam, a benzodiazepine anti-anxiety agent, within
the twenty-four hours prior to the collision. The results
also indicate that Mr. Ison used marijuana within the
seven-day period prior to the collision. These urinary
results are confirmed by the hospital laboratory report of
the analysis of urine collected from Mr. Ison at 9:33 p.m.
on October 21, 2005.
Although there is no doubt that Jason Ison used
these three drugs at some time prior to the collision, there
is no toxicologic evidence to support a finding that he
was under the influence of any substance at the time of
the collision. Drugs that produce their effects upon the
central nervous system, including alcohol and the three
substances identified in Mr. Ison’s urine, are delivered to
the affected tissues by the bloodstream. If there is no
identifiable substance in the bloodstream, there is no
drug-related impairment. Accordingly, it is my
professional opinion that the ability of Jason Ison to
operate a motor vehicle at 4:00 p.m. on October 21, 2005
was not impaired by any chemical substance.
The Commonwealth provided no evidence to counter the toxicologist’s conclusion
that Ison was not under the influence or impaired by any chemical substance at the
time of the collision, and the jury found Ison not guilty of DUI. Moreover,
although a witness testified that he sold the Mustang to Ison’s mother
approximately one year before the collision after telling Ison the car was “loaded
up” and “powerful,” we find no authority for concluding that the mere driving of
such a vehicle, even one with worn tires, in and of itself constitutes extreme
indifference to the value of any human life. 9 Absent proof sufficient to satisfy the
9
We also note the jury did not return a guilty verdict on the charges of second-degree
manslaughter, but instead convicted Ison of the lesser included charges of reckless homicide.
The difference in the two charges, of course, is that the former relates to wanton conduct,
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elevated wantonness element of first-degree assault and first-degree wanton
endangerment, it was “clearly unreasonable for [the] jury to find” that Ison was
guilty of either charge. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.
1991). Thus, the trial court clearly erred by failing to grant a directed verdict or
judgment n.o.v. as to those charges.
Similarly, the evidence is insufficient to support Ison’s convictions for
reckless homicide. KRS 501.020(4) provides that:
A person acts recklessly with respect to a result or to a
circumstance described by a statute defining an offense
when he fails to perceive 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
failure to perceive it constitutes a gross deviation from
the standard of care that a reasonable person would
observe in the situation.
Further,
before defendants can be found guilty of either reckless
homicide or manslaughter, there must exist a legal duty
owed by the defendants to the victim. A finding of legal
duty is a critical element of the crime charged. As stated
in KRS 501.030 and demonstrated by case law, the
failure to perform a duty imposed by law may create
criminal liability. Clearly, in the case of reckless
homicide or manslaughter, the duty must be found
outside the definition of the crime itself. The duty of
care imposed may be found in the common law or in
another statute.
West v. Commonwealth, 935 S.W.2d 315, 317 (Ky.App. 1996).
whereas the latter relates to reckless conduct. KRS 507.040, 507.050.
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The parties have cited, and this court has found, no pertinent Kentucky
legal authority linking excessively worn tires to charges of reckless homicide.10
Instead, published Kentucky cases relating to reckless homicide convictions have
involved circumstances such as driving under the influence, Commonwealth v.
Runion, 873 S.W.2d 583 (Ky.App. 1993), running a stop sign while driving at
twice the speed limit, Commonwealth v. Harrell, 3 S.W.3d 349 (Ky. 1999), or
causing a disabled woman’s death through neglectful care. West, 935 S.W.2d 315.
On the other hand, the Kentucky Supreme Court has held that absent other
evidence of recklessness, a defendant’s failure to properly secure a child in a
vehicle, in violation of the seatbelt restraint law, did not satisfy the requisite mental
state applicable to reckless homicide when the child died as a result of being
thrown out of the car in a collision. Commonwealth v. Mitchell, 41 S.W.3d 434
(Ky. 2001).
Here, the record includes evidence of local media reports reflecting
strong public sentiment against Ison, based on the apparently popular public belief
10
While the courts of this Commonwealth have yet to address whether a person acts recklessly
when driving an automobile with worn tires, other jurisdictions have found such conduct, when
combined with other factors, may constitute criminal conduct. In Commonwealth v. Keysock,
345 A.2d 767 (Pa. Super. 1975), a Pennsylvania superior court found worn tires, combined with
a wet highway and excessive speed, were sufficient to sustain a conviction for vehicular
homicide. Likewise, in Lewek v. State, 702 So.2d 527 (Fla.App. 1997), the defendant was found
to have driven recklessly when not only were his tires worn down as far as Ison’s, but a tire was
missing a lug nut, and the driver was traveling 60 m.p.h. in a 45 m.p.h. speed zone as he
approached an intersection and then accelerated through the intersection against a red light.
Finally, an Atlanta cab driver pled guilty to vehicular homicide after he drove a vehicle with zero
tread on the rear tires and lost control on a wet highway, resulting in a passenger’s death.
However, Georgia, unlike Kentucky, had enacted a specific statute mandating all tires “[s]hall
have not less than 2/32 inch tread measurable in all major grooves[.]” Heller v. City of Atlanta,
659 S.E.2d 617, 620 (Ga.App. 2008).
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that the collision resulted from Ison driving at an excessive speed while under the
influence of alcohol and/or three types of drugs. At trial, however, no evidence
showed that Ison was impaired by any substance at the time of the collision, or that
he drove recklessly or above the speed limit before the collision. Instead, the
evidence showed only that at the time of the undeniably tragic collision Ison was
driving a car with worn tires, in the rain, at or below the speed limit, and that he
lost control of his vehicle before crossing into the oncoming lane of traffic. Even
in light of the horrific results, in the absence of some aggravating circumstance
such as being under the influence of alcohol or controlled substances, travelling at
excessive speed, or violating traffic statutes, Ison’s driving of a vehicle with worn
tires did not constitute criminal conduct with the prerequisite mental state for
“reckless” behavior. It was, therefore, clearly unreasonable for the jury to find
Ison guilty of the three counts of reckless homicide, and the court erred by failing
to grant a directed verdict or judgment n.o.v. as to those charges.
Next, Ison asserts that the trial court abused its discretion by denying
his motion to sever the charges of failing to have automotive insurance and proper
registration from the other charges. We disagree.
Evidence regarding liability insurance coverage is inadmissible to
show that a person “acted negligently or otherwise wrongfully.” KRE11 411.
However, such evidence is necessarily admissible to prove a violation of
11
Kentucky Rules of Evidence.
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automobile liability insurance requirements. Moreover, although RCr12 9.16
requires a trial court to sever joined charges if either a defendant or the
Commonwealth would be prejudiced by the failure to do so, all of Ison’s charges,
including those relating to insurance and registration, stemmed from a single set of
circumstances. See RCr 6.18. We cannot say that the trial court abused its
discretion by failing to sever the charges. See Jackson v. Commonwealth, 20
S.W.3d 906 (Ky. 2000).
Given our conclusions thus far, the remaining issues raised on appeal
are rendered moot.
For the foregoing reasons, the Letcher Circuit Court’s judgment is
reversed and remanded for dismissal of the charges of first-degree assault, firstdegree wanton endangerment (two counts), and reckless homicide (three counts),
and for any proceedings consistent therewith. The judgment is affirmed in all
other respects.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Roy Alyette Durham
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
12
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
Kentucky Rules of Criminal Procedure.
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