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                                                       RENDERED:. MARCH 23, 2017
                                                            NOT TO BE PUBLISHED

                 ~uprtmt Qlnurf nf
                             .   2016-SC-000103-MR
                                                      !8itFfv\JJ ~ l
JUSTIN D. WIBBELS


                    ON APPEAL FROM LAUREL CIRCUIT COURT
V.                  HONORABLE GREGORY ALLEN LAY, JUDGE.
                               NO. 14-CR-00287


COMMONWEALTH OF KENTUCKY                                                     APPELLEE


                    MEMORANDUM OPINION OF THE COURT

                                      AFFIRMING

       A jury in Laurel County convicted Justin Wibbels of wanton murder.

Consistent with the jury's sentencing recommendations, the trial court fixed

his sentence at confinement for twenty years.

       Wibbels now appeals as a matter of right, Kentucky Constitution §

l 10(2)(b), arguing that tlie trial court erred by: (1) denying his motion for a

directed verdict; and (2) denying his request to introduce evidence of the

victim's family's ill will toward him. For the reasons set forth below, we affirm.

                                   I. BACKGROUNDl

       On the morning of June 16, 2014, the Appellant, Justin Wibbels, was

traveling westbound in Laurel County on KY 30, a two-lane road with an

emergency lane on each side, As he traveled in his extended cab pick-up

       1 Because Wibbels challenges the trial court's denial of his motion for directed
verdict, we present the facts in a light most favorable to the Co=onwealth unless
otherwise noted.
truck, he approached and attempted to pass Laura Jones.2 However, upon

Wibbels initiating his pass, Jones was forced to pass the vehicle in front of her,

which had unexpectedly pulled out into her path at a much slower speed from

an intersecting side road. Jones passed the car and returned to her proper

lane of travel in the westbound lane. Wibbels did not return to his 'proper lane.

Instead, he moved to the left, into the eastbound emergency lane. 3

        Mark Sulfridge, a motorist driving westbound in front of Jones and

Wibbels, testified that he observed Wibbels _drivi1;1g in the eastbound emergency

lane 1;1.s oncoming traffic passed him. Wibbels then moved from the eastbound

emergency lane to the westbound lane behind Sulfridge. Sulfridge testified that

he was traveling about sixty miles per hour, and Wibbels passed him "like [he]

was sitting still." Wibbels overtook both Sulfridge and the vehicle in front of

Sulfridge, as a line of five or six vehicles approached in the oncoming,

eastbound .lane. Sulfridge testified that, upon seeing the traffic approaching,

he began to slow down so that Wibbels had space to re-enter the westbound

lane. Sulfridge also testified that Wibbels pulled into the eastbound lane to

pass.Sulfridge, the vehicle in front him, and the vehicle in front of that.

However, instead of re-entering the westbound lane, Wibbels, without slowing

down, moved into the eastbound emergency lane for a second time.
                                                              J

        2   We note, at the outset, that the entire course of events took place in a passing
zone.
      3 Wibbels testified that he was ·"boxed in" by Jones, the slower moving vehicle
he was attempting to pass, and additional vehicles that had taken his place in traffic
behind the slower moving vehicle. Thus, he contends he was forced into the
eastbound emergency lane.
                                               2
                                                                  '


       James Belt was just approaching KY 30 from an intersecting road to the
                                                          .
. south (to Wibbels's left while he drove in the eastbound emergency lane).4 Belt

testified that, as he sat at the stop sign, preparing to turn into the eastbound

lane of KY 30, he looked right and saw Wibbels approaching rapidly. Belt

testified that Wibbels's truck "came through so fast it shook [his] truck" and

"rocked it from side to side.~ Belt also testified that, when Wibbels passed him,

there were no vehicles directly next to Wibbels, which would have prevented

Wibbels from returning to the westbound lane of traffic.s Belt pulled into the
          '                               .



eastbound lane and, through his rearview mirror, observed Wibbels move into
                                                                      \

the eastbound lane and then back into the eastbound emergency lane, while

continuing westbound. Belt testified that Wibbels could h,ave moved into the

open westbound lane but returned to the eastbound emergency Ian~.

      As Wibbels drove in the eastbound emergency lane, Timothy Berry was

traveling westbound on KY 30 ahead ofWibbels and Sulfridge. Through his
                                '     .               .

rearview mirror, Berry could see Wibbels driving westbound in the eastbound

emergency lane as oncoming traffic passed Wibbels. Berry ·testified that he was

traveling at fifty-five miles per hour, with a line of four or five cars behind him,

and Wibbels was "catching [up to him] like [he] was sitting still." About this

time, a new line of four or five vehicles appeared around a curve, traveling in

the eastbound lane. Berry testified that he moved over to the right, partially in



       • The road Belt was exiting, Freeman Hollow Road, was approximately a quarter
of a mile from where Wibbels first passed Jones.
       s Wibbels disputed this testimony, contending that'he was not able to return to
the westbound lane because of a stream of cars therein.
                                          3
     the westbound emergency lane, to allow Wibbels to return to the westbound

    lane, but Wibbels remained in the eastbound emergency lane.

         , The first vehicle in the line of oncoming vehicles passed Wibbels.

    However, the second vehicle, a utility van driven by the victim, Jerry

    Thompson, suddenly darted into the eastbound emergency lane. No evidence

    was presented establishing why Thompson moved abruptly into the emergency

    lane. The two vehicles collided in the grassy area to the side of the. eastbound .

    emergency lane, killing Thompson instantly.

          Berry testified that the collision occurred just opposite his vehicle and.

    that, upon seeing the collision, he returned to the scene to check on the

    drivers. Berry asked Wibbels why he was passing in the emergency lane, to

    which Wibbels replied that he was "late and in a hurry." Wibbels testified that

    he never made this reply to Berry. He stated that he had .to be at work by 9:00

    A.M. and he was not running late, evidenced by the fact that, although it took

    him thirty to forty minutes to travel from his home to work, it was only 8:00
'   A.M. at the time of the collision.

          Wibbels was subsequently convicted by a Laurel County jury of wanton ·

    murder, and was sentenced to twenty years' imprisonment. This appeal

    followed. We set forth additional facts as necessary below.
                    f
                                II. STANDARD OF REVIEW

          Because the issues presented require us to apply different standards of

    review, we set forth the appropriate standard as necessary when addressing

    each issue.
                                                                                       (


                                            4
                                       III. ANALYSIS

    A. ·   The trial court properly denied Wibbels's motion for a directed
           verdict.

           Wibbels contends that, because the Commonwealth failed to prove

    wanton murder, he was entitled to a directed-verdict. We note that Wibbels

    properly preserved .this challenge through his motions for a directed verdict at

    the close ofthe Commonwealth's case-in-chief and at the close of his own case-

    in-chief. Because we discern that there was sufficient evidence for a
                      .                                             r
    reasonable juror to find Wibbels guilty of each element, we affirm the trial

    court's decision to deny Wibbels's motions for a directed verdict.

           On a motion for a directed verdict of acquittal, the trial court must draw

    all fair and reasonable inferences in the Commonwealth's favor.

    Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).· In ruling on the

    motion, "the trial court must assume that the evidence for th·e Commonwealth

    is true, but reserving to the jury questions as to the credibility and weight to be

    given to such testimony." Id. "On appellate review, we determine whether;

    under the evidence viewed as a whole, it would be clearly unreasonable for a

    jury to find the defendant guilty." Browri v. Commonwealth, 174 S.W.3d 421,

    424 (Ky. 2005).

           In order to convict Wibbels of wanton murder, the Commonwealth must

    have proven that he "operat[ed] ... a motor vehicle under circumstances

    manifesting extreme indifference to human life, [and] ... wantonly engage[d] in .

    conduct which create[d] a grave risk of death to another person and thereby
     '

                                            5
(
caus~[d] the death o_f another person." Kentucky Revised Statute (KRS)

507.020(l)(b).

       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.

·KRS 501.020(3). As we noted in Brown v. Commonwealth, "to be convicted of

wanton murder under KRS Q07.020(1)(b), Appellant must have had a more

egregious mental state than mere wantonness." 174 S.W.3d 421, 425 (Ky.

2005). "It is. the element ~f 'extreme indifference to human life' that elevates

wanton homicide to the same level of culpability as intentional homicide." Id.

       There is a kind of [wanton] homicide that cannot fairly be
       distinguished ... from homicides committed [intentionally].
       [Wantonness] ... presupposes an awareness of the creation of
       substantial homicidal risk, a risk too great to be deemed justifiable
       by any valid purpose that the actor's conduct serves. Since risk,
       however, is a matter of degree and the motives for risk creation
       may be infinite in variation, some formula is needed to identify-the
       case where [wantonness] should be assimilated to [intention]. The
       conception that the draft employs is that of extreme indifference to
       the value of human life. The significance of [intentioµ] is that ... it
       demonstrates precisely such indifference.

KRS 507.020 (1974 cmt.) quoting Model Penal Code§ 201.2 cmt. ·2 (Tentative

Draft No. 9, 1959)). Importantly, "whether [wantonness] is so extreme that it

demonstrates similar indifference is not a question that, in our view, can be

further clarified; it must be left directly to the trier offacts." Id. (emphasis

added).


                                           6
         In our analysis, we examine whether the Commonwealth failed to present

sufficient evidence to meet the requisite level of wantonness required to convict

Wibbels of murder. The Commonwealth presented evidence that Wibbels was

(1) driving at a high rate of speed (estimated at above eighty miles per hour); (2)

passing back and forth between the opposite lane of travel and the opposite

lane's emergency lane; and (3) in the vicinity of clusters of vehicles going both

directions during their morning commute. Wibbels argues that his conduct

was based on a social utility, in that he was precluded from returning to the

proper of lane of traffic; howev~r, the Commonwealth presented testimony from

multiple witnesses who disputed his assertion. Furthermore, while in the

emergency lane, Wibbels could have simply stopped and waited for the traffic to·

clear.

         As noted above, we must view the evidence in the light most favorable to

the Commonwealth when reviewing a court's decision to deny a motion for a

directed verdict; in doing so, we discern that the court properly denied

Wibbels's motion. A reasonable juror could find, based on the

Commonwealth's evidence, that Wibbels's conduct manifested an extreme

indifference to human life.

         In the time since the General Assembly enacted Kentucky's. modem

Penal Code, we have visited the issue of wanton murder while operating a

motor vehicle on many occasions. Our sentinel case, Hamilton v.

Commonwealth, 560 S.W.2d 539 (Ky. 1977), affirmed the conviction of wanton

murder where the defendant was drunk, speeding, and driving in the tum lane,

                                         7
before he ran a red light, broad-siding another vehicle and killing its driver. As

Wibbels correctly notes, the majority of o~ cases invoive not just a violation of

traffic laws, but also the use of intoxicants.6 In each of these cases, we have
                          I

· held that there was sufficient evidence presented at trial to support a

conviction of wanton murder .

      . Additionally, this Court has twice affirmed wanton murder convictions

involving unintentional vehicular homicides in the absence of an intoxicated

driver. In Graves v. Commonwealth, the defendant, in an effort to recover

drugs for which he had just paid, raced through urban streets at over one

hundred miles per hour while exchanging gunfire with the occupant of another

vehicle. 17 S.W.3d 858, 863 (Ky. 2000)., He then ran a red light and struck a

vehicle proceeding through the intersection, killing the driver. Id. In Brown       v.
Commonwealth, the defendant was racing another vehicle; was dfatracted by

dash-mounted television monitors in his vehicle; and ran a red light, before



       6 See Walden v. Commonwealth, 805.S.W.2d 102 (Ky. 1991) (defendant was
speeding and had a .0297 blood alcohol level); Keller v. Commonwealth, 719 S.W.2d 5
 (Ky. 1986) (defendant was drunk, speeding, and on the wrong side of the road); Renfro
 v. Commonwealth, 893 S.W.2d 795 (Ky. 1995), overruled on other grounds .(defendant
was drunk, speeding, on the wrong side of the road, and ran a red light); Estep v.
 Commonwealth, 957 S.W.2d 191 (Ky. 1997) (defendant was under the influence of five
different medications, -speeding, and passing in a no-passing zone near. a. curve in a
two-lane highw11.y); Love v. Commonwealth, 55 S.W.3d 816 (Ky. 2001) (defendant was
drunk, speeding, and, upon seeing a police vehicle blocking the road, attempted to
pass the police vehicle); Berryman v. Commonwealth, 237 S.W.3d 175 (Ky. 2007)
(defendant had trace amounts of Xanax in his system, was speeding, and was looking
at a package of prescription pills in his passenger's lap); and· Sluss v. Commonwealth,
381 S.W.3d 215 (Ky. 2012) (defendant was under tjie influence of four medications,
admitted using marijuana earlier in the day, was driving against the advice of the
doctor who prescribed the medication, and was passing vehicles in a no-passing zone).
In addition, this Court has rendered a plethora of unpublished opinions affirming
similar cases.
                                          8
 striking a vehicle proceeding through the intersection, killing the driver. 174

S.W.3d 421 (Ky. 2005).

       Wibbels contends that the above-noted caselaw indicates that a

conviction of wanton murder involving unintentional vehicular homicides

requires some form of aggravating conduct, such as intoxication, gun-fighting,

gross inattentiveness, or racing. We noted in Brown that

      [t]he Commentary to KRS 507.020 is instructive as to what type of
      conduct might constitute aggravated wantonness: "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; cir derailing a speeding
      locomotive." KRS 507.020(1974 cmt.).

Id. at 426. "Each of these examples involves an activity that poses a high risk

to human life, undertaking in or directed toward a place where human beings

are present; yet none of them requires intoxication." Id. Furthermore, none of

them require anything more than the following:

      (i) homicidal risk that is exceptionally high; (ii) circumstances
      known to the actor that clearly show awareness of the magnitude
      of the risk; and (iii) minimal or non-existent social utility in the
      conduct. Such conduct plainly reflects more than mere awareness
      and conscious disregard of a substantial and unjustifiable risk of
      death. It manifests a high disregard for life and evinces what the
      common law chose to call a depravity of mind or heart.

Brown, 975 S.W.2d at 924 (quoting Robert G. Lawson & William H. Fortune,

Kentucky Criminal Law,§ 8-2(c)(2), at 322 (1998)).

      The homicidal risk of driving back and forth between oncoming traffic

and the oncoming traffic's emergency lane is extremely high. While drivers are

permitted to momentarily use the oncoming lane to overtake a slower moving

vehicle in front of them, passing in the oncoming traffic's emergency lane is
                                        9
never permitted. In fact, the emergency lane is the one placi: on the road where

a driver, confronted with a dangerous situation, seeks safety from the other

lanes of travel. However, when the driver finds, rather than safety, another

vehicle driving head-on toward it at an excessive rate of speed, the homicidal

situation we find here is likely to occur.

      Wibbels contends that he was not aware of the risk of driving in the

oncoming traffic's emergency lane. "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." KRS 501.060. 'Phe jury heard

testimony that, upon approaching an intersecting road while in the emergency

lane, he missed James Belt's vehicle by feet. The jury could certainly infer

from this near-miss that Wibbels, if not .aware prior to this near-miss, should

have been aware that he could collide with another vehicle. The jury could also.

infer that, by traveling a~ speeds of more than eighty miles per hour, Wibbels

should have been aware that any collision was likely to result in the death of

another.

      Wibbels arg1,1es that there was a social utility in his action: because he·

could not return to ~is proper lane of travel, and traffic was oncoming, he was

forced to move to the oncoming emergency lane to avoid striking the other

vehicles head-on. However, the jury heard that: 1) Wibbels darted back and

forth more than once between the oncoming traffic lane and the oncoming

emergency lane; 2) he had multiple opportunities to return to his proper lane of

travel; 3) he did not decrease his speed but increased it to overtake additional .

                                        10
vehicles ahead of him; 4) he failed to come to a stop in the oncoming emergency

lahe, despite ample opportunity to do so; arid 5) he stated to the first responder

that he drove in the emergency lane because he was "late and in a hurry."

Viewing this evidence in a light most favorable to the Commonwealth, a

reasonable j,uror could find there was minimal, if any, social utility in his

conduct.

        We hold that it would not be clearly unreasonable for a jury to find

Wibbels guilty of wanton murder. For the preceding reasons, we affirm the

trial court's denial of Appellant's motion for a directed verdict.

B.    The trial court did not abuse its discretion by excluding evidence of
      the Thompson family's ill will toward Wibbels.
      During his case-in-chief, Wibbels testified to being remorseful. On cross-

examination, the Commonwealth asked Wibbels about his remorsefulness:

      Commonwealth: You said you're remorseful.

      Wibbels: Yes.

      Commonwealth: Real bad. Mr.· Thompson has three children,
      three grandchildren and a wife.            ·

      Wibbels: Yes.

      Commonwealth: How many letters of remorse have you written
      them?

      Wibbels: None.

      Commonwealth: None. How many times have you picked up the
      phone and made a phone call and said, "I'm sorry"?

      At this point, Wibbels objected. At the subsequent bench conference,

Wibbels's counsel informed the trial court that it wished to introduce testimony


                                         11
that there was considerable animosity between Wibbels and Thompson's

family, and that members of Thompson's family had attempted to assault

Wibbels outside the courtroom. Wibbels intended to offer this testimony to

explain why he had not written letters or made phone calls to the victim's

family. The trial court denied Wibbels's request to introduce testimony of the

family's animosity toward him and directed the Commonwealth to proceed:

      Commonwealth: Mr. Wibbels, you ever pick up the phone and
      say, "I'm sony he's not going to be there for Christmas or your
      birthday"?

      Wibbels: Excuse me?

      Commonwealth: .Did you ever pick up the phone and call one of
      them and say, "I'm sony he's not going to be there for your
      birthday. He's not going to be there for Christmas"?

      Wibbels: No, I have not done that.

      During his redirect, Wibbels's counsel again requested that the trial

court permit him to introduce testimony that, prior to trial, members of

Thompson's family surrounded Wibbels's vehicle in the courthouse parking lot

and "beat, threw things on the truck, used profanity, and threatened to kill

him." The trial court, again, denied WibbeJs's request. Wibbels then offered

testimony by avowal that he did not send letters or make phone calls to

Thompson's family because they had previousiy threatened hnn:. Wibbels now

contends that the trial court's refusal to allow him to present the subject-

testimony was an abuse of the court's discretion.

      The standard for reviewing questions of the admissibility of evidence is

whether the trial court abused its discretion. Johnson u. Commonwealth, 105

                                       12
S.W.3d 430, 438 (Ky. 2003). "The test for abuse of discretion is whether the

trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by

sound legal principles." Commonwealth        v. English, 993 S_.W.3d 941, 945 (Ky.
1999).

      The trial court noted that the Commonwealth's line of questions

regarding Wibbels's remorsefulness was proper because Wibbels had testified

on direct that he was remorseful. Additionally, the trial court noted that

Wibbels's requested testimony was more prejudicial.than probative. Under

Kentucky Rule of Evidence (KRE) 401, evidence is relevant if it has "any

tendency to make the existence of any fact that is of consequence to the

                              , probable or less probable than it would be
determination of the action more

without the evidence." However, "[a]lthough relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of

undue prejudice, confusion of the issues, or misleading the jury, or by

consideration of undue delay, or needless presentation of cumulative evidence.".

KRE 403.

      The Thompson family's ill will toward Wibbels was irrelevant because the

trial did not concern their state of mind. In fact, during the guilt phase of the

trial, only Wibbels's state of mind at the time of the accident was at issue.
      '
Whether Wibbels felt any remorse was an issue for the penalty phase. Thus,

the Thompson family's ill will toward Wibbels did not have a tendency to make

any material fact in the matter more or less probable. Additionally, Wibbels

opened the door to that line of questioning when he testified to his

                                                            I   •
                                        13
remorsefulness on direct examination. He cannot thereafter complain that the

Commonwealth walked through that door. Finally, we note that the jury

recommended the minimum sentence; therefore, evidence of Wibbels's remorse

or lack thereof did not result in any discernable prejudice. As such, any error

by the trial court.was harmless.

                                   IV. CONCLUSION

      For the foregoing reasons, the judgment of the Laurel Circuit Court in

this matter is affirmed.

      All sitting. All concur.



COUNSEL FOR APPELLANT:

Stefan Bing
Gess Mattingly & Atchison, PSC

William Gary Crabtree
Crabtree & Goforth

COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

David Bryan Abner
Assistant Attorney General




                                       14
