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RENDERED: AUGUST 20, 2026 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0374-MR
BENJAMIN W. CALL APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT V. HONORABLE LUCY A. VANMETER, JUDGE NO. 21-CR-01295
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT AFFIRMING
Benjamin Call beat John Tyler Abner (Abner) to death in a Lexington parking garage after an evening of drinking. The jury determined Call was guilty of murder. He was sentenced to twenty years in prison. He appeals as a matter of right, arguing a directed verdict should have been granted because his high degree of intoxication and prior occurrences of sexual abuse in his family caused him to act under extreme emotional disturbance (EED). He also argues that a detective’s opinion about his intoxication requires reversal. We affirm his conviction and sentence.
I. FACTS AND PROCEDURAL HISTORY Call lived in Ohio but often traveled for work as a pipeline inspector. He arrived in Lexington before work on Monday morning, October 25, 2021. After work, he checked into his Airbnb on West Maxwell Street. He worked out,
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showered, and then called his wife, Bridget Russell, at 6:58 p.m. to tell her he was going out for food.
Call arrived at Pies & Pints at 7:38 p.m. He sat next to Abner, who worked as a server there and had finished his shift for the day. They began talking, and several witnesses testified that they were friendly and flirtatious. Video footage from Pies & Pints shows them leaning close to each other, touching, and hugging.
Call had three high-alcohol beers—two breakfast stouts and a bourbon barrel ale—in the hour he was there. He had a history of alcohol abuse and binge drinking but had been sober for eight to twelve months. He also bought beers for Abner.
Abner texted his husband, John, at 8:40 p.m. that “A muscled-up, straight guy is talking my ear off. He’s hot as f***.” They left together ten minutes later, but Call had to come back to pick up some items he left there. The video shows him stumbling somewhat as he left.
Call and Abner walked to a nearby bar, Centro, and Abner ordered them each a bourbon. The bartender testified Call showed clear signs of intoxication and decided not to serve him additional drinks.
Video shows Call and Abner dancing together and hugging. When Abner stepped away for a minute, Call wandered outside. Abner returned to the bar, closed the tab, grabbed the items Call had left, and they left together at 9:10 p.m.
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Call communicated with Bridget several times over the next fifteen minutes. He texted her to come pick him up, saying he was in the projects, which made Bridget believe he had been drinking. Call stopped sharing his phone location at 9:21 p.m. but called Bridget a minute later, and she describes him as highly intoxicated—slurred speech, confused, making odd requests like getting chocolate milk for the kids. She hears the voice of another man that she described as sounding homosexual. In another call at 9:29 p.m., he was confused about where Bridget was, so Bridget gave Abner the Airbnb address so he could take Call to his rental.
Abner’s car was parked at the Victorian Square Parking Garage on the fifth floor. The motion-activated cameras recorded video of Call and Abner hugging and caressing. They got into the car together. There were movements inside the car that are not clearly visible on the video. Eventually, Abner got out of the car followed by Call. Abner attempted to get in the driver’s seat, but Call blocked him. Abner pushed Call and got in the car. Call opened the door, dragged Abner out of the car, and started beating him.
Call punched and kicked Abner in the face and torso multiple times. Call briefly stopped the attack and got in the car, and the video shows the brake light illuminating. After a moment in the car, Call got out and started attacking Abner again. Eventually, Abner stopped moving, but Call continued kicking him.
A person working across the street heard someone yell for help, so she called the police. The police arrived at 9:45 p.m., and officers heard yelling
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while walking up the stairs. They saw Call kick Abner in the head. When Call saw the police, he complied and lay on the ground.
Abner was unresponsive with multiple facial injuries, his eyes swollen shut, and he had extensive blood loss that had spattered and pooled. He was pronounced dead at the scene.
Police officers offered varying descriptions of Call’s degree of intoxication.
Some described glassy eyes, confusion, and stumbling. Others described him as cooperative, speaking clearly, and answering some questions. He gave inconsistent answers about the victim, identifying him as his brother-in-law, Andrew Hale.
A paramedic testified Call scored fifteen out of fifteen on the Glasgow Coma Scale, which is a standardized medical tool used to assess a person’s level of consciousness after a head injury or other trauma. However, the paramedic also testified Call seemed intoxicated and was unwilling or unable to explain what happened. Call continued naming Andrew Hale as the victim. The officer who rode in the ambulance with Call described him as relaxed or jovial at times en route to the hospital.
Detectives Tim Moore and Steve Cobb interviewed Call at the hospital around 11:15 p.m. while lying handcuffed to a gurney. Call’s statement was disjointed. Call recalled drinking with a cool guy at the pizza place. At times, Call referred to the guy as his brother-in-law. Other times, Call spoke about a guy trying to molest or control him, but Call did say that “maybe I stomped his face in.” He also mentioned taking jiu-jitsu classes.
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Call had his blood drawn by hospital staff at 11:32 p.m., and his blood alcohol content (BAC) tested at 0.309.
Call made a jail phone call to Bridget at 4:00 a.m. He told her that two guys jumped him and that a guy was trying to play him. Call said he beat up someone who had attacked him. Bridget described Call as confused.
Detective Moore interviewed Call at the jail the morning after the assault, this time with another detective. Call remembered drinking heavy beers with Abner but nothing after leaving Pies & Pints until waking up at the hospital. He said he had prior alcohol induced blackouts. At times, he suggested he was fearful and was fighting for his life.
The autopsy established Abner died from multiple blunt force injuries to his head and neck, which caused a skull fracture and brain swelling. His windpipe was fractured, and he had multiple contusions. A blood analysis showed a BAC of 0.112 and the presence of amphetamine—he had a prescription for Adderall—in the therapeutic range.
In addition to intoxication, Call presented the defense of extreme emotional disturbance at trial. The defense presented evidence that Call’s younger brother had been raped as a child by their father’s friend and that Call felt responsible as the older brother. The defense also presented evidence of a recent family crisis involving his brother-in-law, Hale, who engaged in a sexual relationship with Hale’s daughter (Call’s niece) that resulted in pregnancy.
The jury was instructed on murder—with intentional and wanton murder in a combined instruction—as well as instructions on lesser included offenses
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of first and second degree manslaughter and reckless homicide. The court also gave instructions on voluntary intoxication, extreme emotional disturbance, and missing evidence for a police blood draw that was lost. The jury returned a verdict of guilty on murder and recommended the minimum punishment of twenty years.
Call argues two issues on appeal. First, he argues that the circuit court should have directed a verdict. Because the murder instruction included intentional murder and wanton murder in one instruction, we will analyze the two theories in turn. Second, he contends that Detective Moore offered improper opinion testimony by asserting that Call exaggerated his intoxication and was not too drunk to understand what happened.
II. THE CIRCUIT COURT PROPERLY DENIED CALL’S MOTION FOR A DIRECTED VERDICT
The standard for challenging the sufficiency of the evidence requires a trial court to view all reasonable inferences from the evidence in favor of the non‑moving party. A directed verdict is proper only when the evidence is insufficient to support a conviction. Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983). If the evidence would allow a reasonable juror to find the defendant guilty beyond a reasonable doubt, the motion must be denied. The trial court must accept the Commonwealth’s evidence as true, leaving credibility and weight determination to the jury. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). On appeal, the question is whether, considering all the evidence, it would be clearly unreasonable for the jury to find the defendant guilty. Only then is the defendant entitled to a directed verdict of acquittal. Id.
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A. The Prosecution Introduced Sufficient Evidence for the Jury to Convict Call of Intentional Murder.
Call argues that the circuit court should have granted a directed verdict of acquittal on intentional murder because the Commonwealth failed to present sufficient evidence that he had the conscious objective to kill Abner, given overwhelming proof that he was severely intoxicated and acting under EED. After considering the evidence in relation to intoxication and EED, we deny this argument.
Under KRS 507.020(1)(a), a person commits murder when, acting with the intent to cause another’s death, he in fact causes that death. “A person acts intentionally with respect to a result or to conduct . . . when his conscious objective is to cause that result or to engage in that conduct.” KRS 501.020(1). Call argues the Commonwealth failed to prove intent beyond reasonable doubt because extreme intoxication and EED negated intent. We will examine each affirmative defense in turn.
Voluntary intoxication is a question of fact for the jury to decide. It is a defense only when a person is so intoxicated that it negates that person’s ability to form the intent to commit a crime. King v. Commonwealth, 513 S.W.3d 919, 923 (Ky. 2017) (citing KRS 501.080(1)). “‘An accused is always entitled to have this defense submitted to the jury if his evidence is sufficient to indicate the degree of intoxication required . . . to prevent his forming an intent to commit’ the crime charged.” King, 513 S.W.3d at 923 (quoting Parido v. Commonwealth, 547 S.W.2d 125, 128 (Ky. 1977)).
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Call presented sufficient evidence to instruct the jury on voluntary intoxication, and the court gave the proper instruction. Call’s hospital plasma test showed a BAC of .309, which a forensic expert testified placed Call between the confusion and stupor stages of alcohol influence, with likely even higher levels around the time of the assault. Witnesses at Pies & Pints and Centro observed signs of impairment—stumbling, forgetting items, intrusive and inappropriate behavior, and statements that made little sense. Multiple first responders described him as glassy‑eyed, confused, unable to answer basic questions about what happened, and smelling strongly of alcohol, with a paramedic’s report stating he appeared “extremely intoxicated.” During interviews, he was rambling, incoherent, repeatedly saying he did not know what happened, and confusing the victim with his brother‑in‑law.
While the evidence supported instructing the jury on voluntary intoxication, this evidence does not render the jury’s verdict clearly unreasonable. It is the jury’s prerogative to consider the evidence for voluntary intoxication and decide whether to accept or reject it. King, 513 S.W.3d at 925. If the “evidence of [the defendant’s] intoxication was not so compelling as to completely negate the issue of intent,” then it is not unreasonable for a jury to find a defendant guilty. Carver v. Commonwealth, 303 S.W.3d 110, 119 (Ky. 2010). The jury evaluates the weight and credibility of the evidence and can make reasonable inferences based on direct evidence.
Direct evidence is not required to establish intent, which may be inferred from the circumstances. “Intent can be inferred from the actions of an accused
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and the surrounding circumstances. The jury has wide latitude in inferring intent from the evidence.” Anastasi v. Commonwealth, 754 S.W.2d 860, 862 (Ky. 1988). Intent can be inferred from the nature and extent of the injuries. Stieritz v. Commonwealth, 671 S.W.3d 353, 361 (Ky. 2023).
This record provides substantial evidence that supports reasonable inferences that Call intended to cause the death of Abner despite his intoxication. The nature of his assault on Abner implies purposeful action, including the use of particular restraining holds and backing up so he could run up to kick Abner. At one point, Call stopped the assault and got in the car, causing the brake light to illuminate, indicating he was preparing to drive away. Call got out of the car a moment later, though, and resumed the assault. When Call saw and heard the police, he stopped the assault and complied with their orders to lay down. When Call spoke with Detective Moore, Call said he would kill someone who tried to control or molest him.
This evidence was sufficient to justify a finding that Call intentionally killed Abner. Call took actions that imply purpose rather than drunken stupor. He offered deliberate responses to questions. The jury determines the credibility and weight of the evidence and can make reasonable inferences from the evidence. Therefore, it was not unreasonable for a jury to find Call guilty of intentional murder.
Call also argues that Abner’s sexual advance combined with Call’s family trauma from sexual abuse was a triggering event that required acquittal for EED, which is a defense to murder contained in the murder statute itself. KRS
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507.020(1)(a). Significantly, even if the jury finds that EED prevents finding a defendant guilty of murder, the statute affirmatively states this does not preclude a conviction for first degree manslaughter. Id.
EED refers to a temporary mental state so intense or overwhelming that it overcomes a person’s judgment and drives actions that are uncontrollable, arising from the force of the emotional disturbance rather than from any malicious intent. Greene v. Commonwealth, 197 S.W.3d 76, 81 (Ky. 2006). EED requires adequate provocation, also referred to as a triggering event. Fields v. Commonwealth, 44 S.W.3d 355, 359 (Ky. 2001). The provocation must be sudden and uninterrupted but does not have to be contemporaneous to the underlying triggering event. Benjamin v. Commonwealth, 266 S.W.3d 775, 783 (Ky. 2008). The jury makes the factual determination of whether someone acted under the influence of extreme emotional disturbance. Greene, 197 S.W.3d at 82.
The circuit court properly instructed the jury on EED because Call presented sufficient evidence to support the theory, even though Call did not offer an expert witness. Call argued that because he was a married, heterosexual man, he was unable to process a sexual advance from another man while he was so drunk. He also presented evidence of two incidents of sexual abuse in his family. While he was not the victim or the perpetrator in those incidents, they impacted him and affected his reaction in the moment with Abner. Similar to intoxication, though, this does not render the jury’s rejection of the defense clearly unreasonable.
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A directed verdict is proper only when no rational juror could find the defendant guilty of any charged offense or any lesser‑included offense under any viable theory of liability. Nichols v. Commonwealth, 142 S.W.3d 683, 693 (Ky. 2004). Even if the evidence of EED might weaken the Commonwealth’s proof of intentional murder, the circuit court was required to consider all possible theories submitted to the jury, including wanton murder, first degree manslaughter, and other lesser‑included offenses. The Commonwealth presented extensive evidence that Call engaged in a prolonged, violent beating that created a grave risk of death—facts that readily support at least wanton murder or first‑degree manslaughter even if the jury rejected purposeful intent. Because a reasonable juror could find guilt under one or more of those alternative theories, it was not clearly unreasonable for a jury to convict, and therefore the circuit court correctly declined to grant a directed verdict.
B. The Prosecution Introduced Sufficient Evidence for the Jury to Convict Call of Wanton Murder.
Call argues that a directed verdict was required on wanton murder because the evidence did not show extreme indifference to human life. Instead, he characterizes the events as a drunken fight in an empty parking garage— serious but not the type of grave, risk‑creating conduct like firing into crowds or pointing loaded guns that justified wanton murder convictions.
Under KRS 507.020(1)(b), a person commits murder when he acts wantonly in a manner that creates a substantial risk of another’s death and, as a result of that conduct, causes that death. A person acts wantonly when he is aware of a substantial, unjustifiable risk and chooses to disregard it, in a way
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that markedly departs from how a reasonable person would behave under similar circumstances. Even if he is unaware of that risk solely because he is voluntarily intoxicated, the law still treats his conduct as wanton. KRS 501.020(3).
The key element that justifies a murder conviction with a wanton state of mind is that the conduct manifests extreme indifference to human life. Simpson v. Commonwealth, 718 S.W.3d 900, 914 (Ky. 2025). That element is the primary distinguishing factor between wanton murder and second degree manslaughter. Hudson v. Commonwealth, 385 S.W.3d 411, 417 (Ky. 2012); KRS 507.020(1)(b); and KRS 502.040. The evidence required to prove this aggravated degree of wantonness includes: “(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.” Hudson, 385 S.W.3d at 417. Whether the conduct rises to that level is a question for the jury to decide. Ramsey v. Commonwealth, 157 S.W.3d 194, 197 (Ky. 2005).
Extreme indifference to the value of human life can occur in a variety of situations. Driving a car while drunk or speeding supports a conviction for wanton murder. Pozo-Illas v. Commonwealth, 671 S.W.3d 118, 125 (Ky. 2023); Brown v. Commonwealth, 174 S.W.3d 421, 426 (Ky. 2005). Firing multiple shots into the air foreseeably invited returned gunfire that caused a death manifested extreme indifference to the value of human life. Taylor v. Commonwealth, 617 S.W.3d 321, 327 (Ky. 2020). Most relevant to this case is
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Simpson, where we upheld a conviction for wanton murder that resulted from the defendant violently beating up and strangling the victim. 718 S.W.3d at 906, 914-15.
Several facts support a finding that Call acted wantonly with extreme indifference to human life. The video of the assault combined with the severity of the injuries shows an extended struggle, Call’s repeated return to inflict additional blows even after Abner ceased resisting, and the sustained force of the final kicks all reflect a conscious disregard of a substantial and obvious risk of death. Abner’s cries for help and the brutality of the resulting injuries underscore that Call continued his assault in circumstances that made the danger to human life unmistakably clear. A verdict of wanton murder would not be clearly unreasonable.
III. DETECTIVE MOORE’S OPINION TESTIMONY ABOUT THE DEGREE OF CALL’S INTOXICATION WAS INADMISSIBLE BUT DID NOT RESULT IN MANIFEST INJUSTICE
Detective Moore testified without objection that although Call had been drinking, Call did not appear to Moore to be intoxicated to a degree that would prevent him from recalling events. Moore stated that Call spoke clearly, did not slur his speech, complied immediately with officers, and did not smell of alcohol during the hospital interview. He further opined that Call repeatedly saying that he did not know what happened was more consistent with someone “buying time” and attempting to assemble a story, rather than someone impaired by alcohol to the point of confusion or memory loss. Finally, Moore acknowledged that he did not know Call’s BAC—either at the time of the
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interview or when he testified—and stated that he did not consider the BAC significant to his assessment of Call’s condition.
Because the issue was not preserved, it is reviewed under RCr 10.26 for manifest injustice. This standard requires the Court to consider the proceeding as a whole to determine whether the claimed error is so fundamental and unmistakable that it threatens the integrity of the judicial process. An error is palpable only when it is sufficiently serious that leaving it uncorrected would compromise the overall fairness of the proceeding. The ultimate inquiry is whether there is a substantial possibility that the result would have been different absent the error. Johnson v. Commonwealth, 680 S.W.3d 814, 824 (Ky. 2023).
Under the Kentucky Rules of Evidence (KRE) 701, a lay witness may offer opinion testimony only when the opinion arises from the witness’s own perceptions, assists the fact-finder in understanding the testimony or resolving a factual issue, and does not rely on scientific, technical, or other specialized knowledge reserved for expert witnesses under KRE 702. A witness is allowed to testify regarding a person’s apparent intoxication when it is based on the witness’s personal observation of certain facts of that person’s behavior. Carson v. Commonwealth, 621 S.W.3d 443, 446-47 (Ky. 2021). An officer who observed a defendant’s appearance and behavior is allowed to express an opinion that the defendant was intoxicated. Iraola-Lovaco v. Commonwealth, 586 S.W.3d 241, 245 (Ky. 2019).
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Call’s case is similar to our recent opinion in Simpson v. Commonwealth, 653 S.W.3d 855 (Ky. 2022). In Simpson, the defendant was driving a car while under the influence of methamphetamine, causing an accident in which two people died. An officer testified that Simpson was excited, erratic, and could not stop talking—he made jokes and shared his personal and family history even though he was not asked about it. Id. at 868. Applying KRE 701, we concluded this testimony was not improper opinion testimony because the officer was describing the behavior he actually observed. Id. at 868–69.
In contrast, we ruled other testimony from the officer was irrelevant. Id.
at 869–70 (citing Ordway v. Commonwealth, 391 S.W.3d 762, 776–77 (Ky. 2013)). The officer’s testimony that Simpson’s behavior was “not typical at all” as drivers in accidents are usually concerned about the other driver and are mournful or grieving rather than excited and making jokes. However, we did not find manifest injustice occurred and affirmed the judgment. Id.
Some of Detective Moore’s testimony that Call challenges on appeal was competent. He testified that Call did not slur his speech, that he did not smell of alcohol, and that he complied with officers. This testimony was based on Moore’s observations of Call and was properly admitted as relevant based on his personal observations.
Other portions of Detective Moore’s testimony were inadmissible. For instance, Moore testified that “I don’t believe he was intoxicated as much as he was trying to get together a story that would makes sense to both him and to us.” Moore acknowledged Call had been drinking, “just not to the amount that,
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in my training and experience, would lead to extreme intoxication to where he wouldn’t remember what was going on.” He did not believe that Call “was intoxicated to the level of not remembering what had happened.”
Detective Moore’s testimony is similar to Ordway, 391 S.W.3d at 776–77.
There, the detective testified about how guilty people typically behave and how innocent people do not act. We concluded that testimony was incompetent “because it permitted the police detective to authoritatively suggest how innocent persons behave after they lawfully engage in an act of self-defense, and to then, with some measure of certainty, exclude Appellant from that class of persons based upon his conduct following the shooting.” Id. Significantly, the issue in Ordway was preserved.
Detective Moore offered his opinion that Call was not so drunk that he could not remember what had happened or was trying to make up a story. This moved beyond personal observation of behavior and into interpreting from a professional point of view—based on his training and experience—the degree and impact of the impairment. This went too far. The circuit court even commented that she was surprised no one objected. However, substantial evidence, as detailed in the prior issue—eyewitness testimony from Pies & Pints and Centro and video of the assault in the parking garage, supports a finding of guilt. We conclude the result would not have been different if Detective Moore’s improper opinion testimony had been excluded. Therefore, we find manifest injustice did not occur.
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IV. CONCLUSION
Having considered the entire record, we conclude that the evidence was sufficient to submit both intentional and wanton murder to the jury, and that the jury’s verdict was not clearly unreasonable in light of the proof presented. Likewise, although certain portions of Detective Moore’s testimony should not have been admitted, the error did not rise to the level of manifest injustice under RCr 10.26. Because neither claim warrants reversal, we affirm the judgment and twenty-year sentence imposed by the Fayette Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Jennifer L. Wade Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
James Havey Assistant Solicitor General