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'RENDEREi):; MARCH 23, 2017
NoT To BE PUBLISHED'

~y%npreme Tourt of Beninckg

2016- sc 000103 MR
JUSTIN D. wI_BBELS ' _ APPELLANT

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

COMMONWE_ALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COU§T
l AFFIRMING
A jury in Laurel County convicted Justin Wibbels of wanton murder.
Consistent with the jury’s sentencing recommendations, then trial court fixed
his sentence at confinement for twenty years. f
Wibbels now appeals asa matter of right, Kentucky Constitution §
1 10(2)'(b), arguing that the trial court erred _by: v(l)'_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.
1. laAcKG'RoUND1
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 Comrnonwealth 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.
lInstead, he moved t`o the left, into the eastbound emergency b1ane'.3

Mark Sulfridge, a motorist driving westbound in front of Jones and
Wibbels, testified that he observed Wibbels driving in the eastbound emergency
lane as 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 inn 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.
l

 

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 pa,ss 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

- J ames Belt- was just approaching KY 30 from an intersecting road to tl'ie`

. 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.5 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 have moved into the
open westbound lane but returned to the eastbound emergency lane.

As Wibbels drove in the eastbound emergency lane, Timothy Berry was
traveling westbound on KY 30\ ahead of Wibbels and Sulfridge. 'Through his
rearview mirror~, Berry could see Wibbels driving westbound in the eastbound
emergency lane as oncoming traffic passed Wibbels.l Berry testified that he was 1
traveling at fifty-five .i'niles per hour, with a line of four or five cars behind him,
vand.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

 

4 The road Belt was exiting, Freernan Hollow Road, was approximately a quarter
of a mile from where Wibbels first passed Jones.

5 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. 4

The first vehicle in the line of oncoming vehicles passed Wibbels,
However, the second vehicle, a utility van driven by the victim, Jerry
Thornpson, 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
n 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 horne 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.

II. STANDARD OF REVIEW

Because the issues presented require us to apply different standards of

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

each ~issue.

ni. 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 of the 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
reasonable juror to find Wibbels guilty of each element, we affian the trial
court’s decisionto deny Wibbels’smotions 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, 8~16 S.W.2d 186, 187 (Ky. 1991).' Inruling 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.” Brown' v. Commonwealth 174 S.W.Sd 421,
424 (Ky. 2005). v ` l

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 tol another person and thereby

cause[d] the death of another person.” Kentucky Revised Statute (KRS)

507.020(1)(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 507.020(1)(b), Appellant must have had a more
egregious mental state than mere wantonness.” 174 S.W.3d 421, 425 (Ky.
12005). >“It is the element of ‘extreme indifference to'»hu|man 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 [intention] is that. it .
demonstrates precisely such indifference

KRS 507.02`0 (1974 cmt.) quoting Model Penal Code',§ 201.24 cmt. ~2 (Tentative
Draft Noi 9, 1959_)). Irnportantly, “whether [wantonness] is so extreme that it
' demonstrates similar indifference is not a question that, in our view, can be l -
further clan'fied,‘ it must be left directly to the trier of facts.” Id. (emphasis

added) .

In our analysis, we examine whether the Commonwealth failed to present
sufficient evidence tomeet the requisite level of wantonness required to convict
Wibbels of murder. The Commonwealth presented evidence that Wibbels was
(l) driving ata 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 clus-ters 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; however, the Commonwealth presented testimony from
multiple witnesses Who disputed his assertion. Furtherrnore, while in the l
emergency lane, Wibbels could have simply stopped and waited for the traffic to "
clear. - n

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 humanlife.

In the time_since the General Assembly enacted Kentucky’s modern
Penal Code, we have visited the issue of wanton murder while operating a
motor vehicle on many occasions. Our sentinel casel, 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 turn lane,

7

before he ran a red light, broad-siding another vehicle and killing its driver. As
Wibbels correctly notes, the majority of our cases involve not just a violation of
, traffic laws, but also the use of intoxicants.6 In each of these cases,' we have
~' held that there was sufficient evidence presented at trial to support a
conviction of wanton murder. l

- Additionally, this Court has twice-affirmed wanton murder convictions -
involving unintentional vehicular homicides in the absence of an intoxicated
` driver. In Graves z). Commonwealth7 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 4
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 1).

Commonwealth, the defendant was racing another vehicle; was distracted 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); Kelle_r v. Commonwealth, 719S.W.2d 5
(Ky. 1986) (defendant was drunk, speeding, and on_ the wrong side of the road); _Renfro

- 1). Commonwealth, 893 S. W. 2d 795 (Ky.l 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 Eve
different medications, speeding, and passing in a no- passing zone near a curve in a
two-lane highway); 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. 2_012) (defendant was under the 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 %)vanton’ murder is: shooting

into a crowd, an occupied building or an occupied automobile;

placing a time bomb in a public place; o`r 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 v

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. Lawso'n & William H. Fortune,
Kentucky criminal Law, § 8-2(¢)(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 place 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

n 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 dan 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. The 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 at 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 argues that there was a social utility in his action: because he
could not return to_ his proper lane of travel, and traffic was oncoming, he was
forced to move to the oncoming emergency lane to avoid striking the other
j 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 4

10

vehicles ahead of him; 4) he failed to come to a stop in the oncoming emergency
lane, despite ample opportunity to do so; and 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 juror could find there was minimal, if any, social utility in his
'conduct. b n

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. , l . 4

Wibbels: Yes. d

Commonwealth: Real bad. Mr.'-Thompson has three children 5 `
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 sor'ry”?‘

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

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

ll

that there Was considerable animosity between Wibbels and l`hompson’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
fainily’s animosity toward him and directed the Commonwealth to proceed:

Commonwealth: Mr. Wibbels, you ever pickup the phone and -

say, “I’m sorry he’s not going to be there for Christmas or your

birthday"?

Wibbels: Excuse me? l

Commonwealth: _Did you ever pick up the phone and call _one of

them and say, “I’m sorry he’s not going to be there for your

birthday. H_e’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 Wibbels’s request. Wibbels then offered
testimony by avow_al. that he did not send letters or make phone calls to
Thompson’s family because they had previously threatened him. 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 v. Commonwealth, 105

12

S.'W.3d 430, 438 (Ky. 2003). “'l_`he test for abuse_of discretion is whether the
trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by
sound`legal principles.” jCo_mmonweaZth_`v/. English, 993 S.W.3d 941, 945 (Ky.
19991 n s

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. Underv
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
determination of the action more probable or less probable than it would be
without the evidence.” However, “[a]lthough relevant, evidence may be
excluded if its probative`value is substantially outweighed by the danger of d

/

undue prejudice, confusion of the issues, or misleading the jury, or by `
consideration of undue delay, or needless presentation of cumulative evidence.” .
KRE4031

b 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, l
the Thompson family’e 111 w111 toward wibb'eie did net have a tendency 10 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

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. n
" iv. coNcLUsioN

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

this matter is emi-med v

All sitting. All concur.

COUNSEL FOR APPELLANT:

Stefan Bing
Gess Mattingly 85 Atchison, PSC

William Gary Crabtree
Crabtree 85 Goforth

COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

David Bryan Abner
l Assistant Attorney General

14

