CRIMINAL: WANTONNESS ELEMENT FOR ASSAULT AND WRONGFUL ENDANGERMENT ADDRESSED IN DRIVING VEHICLE: ISON V. COM. (COA 9/26/2008)

ISON V. COMMONWEALTH
CRIMINAL:  WANTONNESS ELEMENT FOR ASSAULT AND WRONGFUL ENDANGERMENT ADDRESSED IN DRIVING VEHICLE
2007-CA-001007
PUBLISHED: AFFIRMING IN PART, AND REVERSING AND REMANDING IN PART
PANEL: VANMETER PRESIDING; WINE, LAMBERT CONCUR
LETCHER COUNTY
DATE RENDERED: 9/26/2008

Jason Ray Ison appeals from a judgment after a jury convicted him on multiple charges including reckless homicide (three counts), first-degree assault, first-degree wanton endangerment (two counts), and criminal mischief. COA affirmed in part, and reversed and remanded in part.

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.

COA found 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.

Absent proof sufficient to satisfy the 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.

The parties have cited, and the COA found, no pertinent Kentucky legal authority linking excessively worn tires to charges of reckless homicide.

Instead, published Kentucky cases relating to reckless homicide convictions have involved circumstances such as driving under the influence,  running a stop sign while driving at twice the speed limit, or causing a disabled woman’s death through neglectful care.

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).

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.

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.

Evidence regarding liability insurance coverage is inadmissible to show that a person “acted negligently or otherwise wrongfully.” KRE 411.

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