IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 20, 2025 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0356-MR
KRISTOPHER SHANE WEST APPELLANT
ON APPEAL FROM OHIO CIRCUIT COURT V. HONORABLE TIMOTHY R. COLEMAN, JUDGE NO. 20-CR-00171
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Kristopher Shane West appeals from his convictions by the Ohio Circuit
Court following a jury trial. The jury determined West was guilty of murder,
assault in the first degree, and other related offenses involving his operation of
a motor vehicle while he was intoxicated.
Finding no grounds for the reversal of any of West’s convictions, we
affirm. However, the parties have agreed that the monetary fines and costs
assessed against West were in error given his indigency and therefore these are
vacated.
I. FACTUAL AND LEGAL BACKGROUND
On the afternoon of August 27, 2020, West drove his Toyota Highlander
to pick up his eighteen-year-old friend Kaela Hilliard who brought along her
own friend, seventeen-year-old Brianna Bratcher. West was twenty-seven years old and driving on a suspended license owing to three previous driving under
the influence (DUI) convictions. The Toyota was not licensed nor was it insured.
West drove to a liquor store where he purchased a bottle of vodka and
next the trio went to Ellis Park where they spent approximately forty-five
minutes smoking marijuana. Bratcher only took “a sip” of vodka while Hilliard
did not drink. After leaving the park West proceeded to “drive around” while
continuing to drink the vodka he had purchased.
While driving on State Route 69, West began driving faster and began
passing other cars. One vehicle West passed was driven by Alyssa Niblick. West
passed Niblick on a curve where the roadway was only two lanes. She testified
she was concerned that she had been passed in a no-passing zone where
motorists could not see oncoming traffic and called 911 to report a reckless
driver. Niblick also testified to seeing a young girl (Hilliard) in the front
passenger seat who looked terrified and another young girl in the back seat
(Bratcher).
Another driver, Luke Lykens, watched West speed up the center of the
road and drive through an intersection passing cars by driving into the
oncoming lane. According to Lykens, the Toyota was going so fast when it
turned left in front of him that the vehicle appeared to start drifting and the
passenger in the front seat was “plastered” up against the vehicle’s window as
it turned. Lykens followed West and the Toyota continued to drive towards cars
in the oncoming lane. Three other vehicles in succession drove onto the
shoulder as West sped towards them. Lykens testified that West was driving
2 between 90 and 100 miles per hour (mph) and swerved to the right into a ditch
and then back across the roadway into the opposite ditch. At that point,
Lykens pulled to the side of the road and called 911.
Daniel Bellamy was one of the motorists who had to swerve to avoid West
on Highway 231 when West swerved into Bellamy’s lane. Bellamy was driving
his ambulance along with his coworker Melinda Hall. A few minutes later they
would get the call to respond to a single vehicle wreck where Bellamy
recognized the Toyota that had almost hit him head-on.
West’s Toyota ultimately left the roadway striking a telephone pole on the
rear passenger side and then flipped and rolled two times before coming to rest
in a brush pile. The posted speed limit at the site of the wreck was thirty-five
miles per hour. Sergeant Chris Rafferty of the Kentucky State Police analyzed
the event data recorder (EDR) of the Toyota and testified that it was travelling
at 54.7 miles per hour 4.4 seconds before the collision and its brakes were not
applied.
West, Hilliard, and Bratcher were all ejected from the Toyota. West and
Hilliard were ejected through the side windows, and Bratcher was ejected
through the sunroof. Bratcher died at the scene from multiple blunt force
trauma. Hilliard was transported by ambulance to Owensboro Regional
Hospital with an L1 superior endplate fracture which is a compression fracture
of lumbar vertebrae. West sustained a concussion.
West had a blood alcohol level of 0.149. West’s blood tests also revealed
THC from his marijuana usage as well as the presence of methamphetamine
3 and amphetamines. Dr. Greg Davis of the University of Kentucky College of
Medicine testified that West was intoxicated by, and otherwise impaired by,
alcohol, marijuana, and methamphetamine/amphetamine at the time of the
collision.
West testified at his trial and admitted he had been drinking vodka and
smoking marijuana on the day of the accident and that he had
methamphetamine in his system. He also did not deny that his Toyota had
expired registration plates and admitted he had no valid driver’s license or
insurance.
At the conclusion of his four-day trial, West was convicted of murder
(Bratcher’s death), assault in the first degree (Hilliard’s injuries), operating a
motor vehicle under the influence-fourth offense, unlawful transaction with a
minor in the second degree (Bratcher), possession of an open alcohol container
in motor vehicle, possession of drug paraphernalia, operating on a DUI
suspended license-second offense-aggravating circumstances, failing to
maintain required insurance, and having no registration plates. Following the
recommendation of the jury, the trial court sentenced West to a total of fifty-six
years’ imprisonment for these convictions.
II. ISSUES
West argues the trial court erred by: (1) denying his motion for a directed
verdict as to first-degree assault; (2) denying his motion for a directed verdict
as to murder; and (3) assessing fines, fees, and costs against him given his
indigency.
4 A. Sufficient evidence of serious physical injury was presented to support West’s conviction for first-degree assault.
West’s counsel moved for a directed verdict on the charge of first-degree
assault at the close of the Commonwealth’s case and again at the close of the
defense’s case. In considering whether a motion for directed verdict should be
granted, “[t]he trial court must draw all fair and reasonable inferences from the
evidence in favor of the party opposing the motion, and a directed verdict
should not be given unless the evidence is insufficient to sustain a conviction.”
Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983).
As stated in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991):
If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
On appeal, the denial of a directed verdict motion is reviewed to
determine whether “under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then is the defendant is entitled to a
directed verdict of acquittal.” Lamb v. Commonwealth, 510 S.W.3d 316, 325
(Ky. 2017) (quoting Benham, 816 S.W.2d at 187).
West argues that Hilliard did not suffer a “serious physical injury” and
therefore he could not be convicted of assault in the first degree. Kentucky
Revised Statutes (KRS) 508.010 states:
(1) A person is guilty of assault in the first degree when:
5 (a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(b) Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.
(2) Assault in the first degree is a Class B felony.
(Emphasis added).
A “serious physical injury” is statutorily defined in relevant part as a
“physical injury which creates a substantial risk of death, or which causes
serious and prolonged disfigurement, prolonged impairment of health, [or]
prolonged loss or impairment of the function of any bodily organ . . . .” KRS
500.080(19). 1 According to West, while Hilliard did suffer an injury by
fracturing her vertebrae, she did not require surgery, refused pain medications,
only wore a brace for approximately six months, and, according to her treating
physicians, was not disfigured and was expected to “make a complete and full
recovery.” As such, West argues that Hilliard’s injuries never posed a
“substantial risk of death” nor did they meet any of the other categories of
injury described in KRS 500.080(19).
1 The General Assembly has repeatedly amended the definitional statute of KRS
500.080 to define additional terms, leading to the renumbering of existing terms. The definition of “serious physical injury” itself has also been amended and expanded. At the time the crime occurred, the definition for “serious physical injury” was contained in KRS 500.080(15), as amended by 2017 Kentucky Laws Ch. 171 (HB 524) § 4. Currently, pursuant to 2024 Kentucky Laws Ch. 174 (HB 5) § 44, the definition for “serious physical injury now appears at KRS 500.080(19). At all times, the definitional language cited in this opinion has remained the same. To avoid confusion, we refer the definition by its current subpart.
6 In support of this argument, West cites to Luttrell v. Commonwealth, 554
S.W.2d 75 (Ky.1977), wherein this Court, in a four to three decision, held that
the victim, as a matter of law, was not seriously injured. West’s brief is in error,
however, in its assertion that in that case “an officer was shot with buckshot.”
In fact, as the opinion clearly states, the officer was shot in the chest with
relatively few tiny pellets, described as “bird shot,” that had come from a single
.38 caliber cartridge fired from a revolver. Moreover, although the officer was
hospitalized for five days, his wounds were described in the opinion as merely
“superficial.” Id. at 77.
Similar reliance is placed by West on the holding in Souder v.
Commonwealth, 719 S.W.2d 730 (Ky.1986), overruled on other grounds by B.B.
v. Commonwealth, 226 S.W.3d 41 (Ky. 2007) where we also held that there was
no evidence to prove an essential element of first-degree assault; namely,
“serious physical injury.” Again, we can readily distinguish that situation from
the facts in the case at hand. In Souder we said,
The only argument made by the Commonwealth to support “serious physical injury” is that because the child sustained burns in and about the mouth [from a cigarette or cigarette lighter], which, standing alone, admittedly were not serious, that the child may have been exposed to smoke fumes which “create[d] a substantial risk of death.” . . . Without in any way depreciating the hideous nature of such an act, the fact remains that there was nothing to prove that this child was in danger of death from this injury or from any other injury inflicted upon her.
Id. at 732.
There is a dramatic contrast between the injuries discussed in Luttrell
and Souder and those inflicted on Hilliard. In this case, the evidence included
7 Dr. Raque’s testimony that Hilliard’s fracture injury caused extreme pain,
would limit her mobility, and require her to wear a back brace until the
fracture healed. Also, while “medical testimony may be the preferred method of
proving the serious physical injury requirement,” Brooks v.
Commonwealth, 114 S.W.3d 818, 824 (Ky. 2003), “the victim was competent to
testify about [her] own injuries.” Commonwealth v. Hocker, 865 S.W.2d 323,
325 (Ky. 1993). Here, in addition to the medical testimony, Hilliard’s testimony
provided important information about the extent of her injuries. She
testified she wore the back brace for six months, and thus her ability to
function was limited throughout that period of time. She also testified she “lost
some function in [her] right arm that [she] never regained,” cannot sit still for
long periods of time, cannot bend over to lift things, and could not sleep,
regardless of position, because she wakes up in pain.
Such testimony supports a finding of “prolonged impairment of health
[or] prolonged loss or impairment of the function of any bodily organ[.]” KRS
500.080(19). Furthermore, this Court has previously determined that pain, like
that suffered by Hilliard, is an “impairment of health” and prolonged pain is a
“serious physical injury.” Parson v. Commonwealth, 144 S.W.3d 775, 787 (Ky.
2004), implied overruling on other grounds recognized by Shields v.
Commonwealth, 647 S.W.3d 144, 158 (Ky. 2022). In Parson, the victim was
“diagnosed with multiple contusions and strains, a laceration of the elbow
which was sutured, and a cervical strain.” Id. at 786. The victim went to
physical therapy and pain management, which she was still attending at the
8 time of trial and “still suffered from neck pain, although the numbness in her
arms had improved and her headaches had dramatically improved.” Id. This
Court found that such evidence was sufficient to convince a jury that she
suffered a prolonged impairment of health that constituted a serious physical
injury. Id. at 787.
Trial courts should grant a motion for directed verdict “if the prosecution
produces no more than a mere scintilla of evidence.” Benham, 816 S.W.2d at
188. Additionally, “an appellate court should not reverse unless it would be
clearly unreasonable for a jury to find guilt.” Commonwealth v. Goss, 428
S.W.3d 619, 625-26 (Ky. 2014). The evidence presented at trial was more than
sufficient to allow a reasonable juror to determine that Hilliard suffered a
serious physical injury and to sustain a conviction of first-degree assault. As
such, West was not entitled to a directed verdict and there was no error.
B. Sufficient evidence was presented to support West’s conviction for murder.
West’s counsel moved for a directed verdict on his murder charge at both
the close of the Commonwealth’s case and again at the close of the defense’s
case. West was charged with murder in accordance with KRS 507.020(1)(b)
which criminalizes “the operation of a motor vehicle under circumstances
manifesting extreme indifference to human life [when one] wantonly engages in
conduct which creates a grave risk of death to another person and thereby
causes the death of another person.”
“Wantonly” is defined by KRS 501.020(3) as:
9 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 a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
This Court has held that a conviction of wanton murder is generally
“reserved exclusively for offenders who manifest virtually no concern for the
value of human life.” Johnson v. Commonwealth, 885 S.W.2d 951, 952 (Ky.
1994).
West argues that the Commonwealth did not provide sufficient evidence
for the jury to find that West acted wantonly “under circumstances manifesting
extreme indifference to human life” and more was required than just his
admitted impairment to find his actions to have been wanton. While West
acknowledges he was “driving above the speed limit,” he argues his actions
could not be wanton because his speed was “not excessive” at the moment his
Toyota struck the telephone pole as it was traveling only “seven mph over the
speed limit” which “is reasonable and not excessive.” The Toyota’s EDR showed
that 4.4 seconds prior to the crash, West’s vehicle was traveling at 54.7 mph in
a 35 mph zone; this was almost 20 mph over the speed limit. At the moment of
the crash, the vehicle was traveling 42.3 mph. 2
In Sluss v. Commonwealth, 381 S.W.3d 215, 220 (Ky. 2012), we stated:
2 The decrease in the speed of the vehicle could be attributed to loss of velocity
caused by the friction generated by the skidding/turning of the vehicle immediately prior to impact when West lost control.
10 Appellant is incorrect that previous cases have created a “checklist” of factors a court must examine when determining whether a wanton murder jury instruction should be given to a jury. While it is certainly true that speeding is a factor that courts have considered, Hamilton [v. Commonwealth, 560 S.W.2d 539 (Ky.1977)] makes clear that the trial court and the jury must examine the specific facts of each case and make a determination based on the totality of the circumstances.
Looking at the totality of the circumstances, West admitted he was
intoxicated prior to picking up Hilliard and Bratcher and admitted to having
methamphetamine in his system. He knew he should not have been driving.
Despite this, he made the decision to buy and drink vodka and smoke
marijuana after picking up his passengers. In addition, abundant witnesses
came forward to testify to the extended period of time in which West was
speeding, recklessly passing motorists on two-lane roads, driving other
motorists off the road, at one point hitting a guardrail, and driving into ditches.
Notably, Hilliard testified she and Bratcher were terrified and “begged” West to
slow down and let them out of the vehicle.
West was indeed speeding at the time of the wreck, and he made
conscious and clear choices to not only drive while he was impaired, but to
substantially increase his level of impairment over the course of his travels that
day, and to refuse his passengers’ requests that he slow down and let them
out. Those choices, together with the fact that the wholly reckless driving he
exhibited was not isolated to a single moment or limited period of time, gave
the trial court all the proof required to properly deny West’s motions for a
directed verdict. The evidence presented at trial was wholly sufficient to allow 11 reasonable jurors to determine that West was guilty of wanton murder. There
was no error.
C. Did the trial court improperly assess fines and costs?
Lastly, West argues that the trial court erred when it assessed fines
totaling $1,300.00, $165.00 in court costs, and a service fee of $425.00.
$300.00 of the fines were related to West’s violations while the remainder of the
assessments related to West’s DUI 4th offense.
West argues that fines cannot be assessed against an “indigent”
defendant such as himself, 3 and costs may not be imposed upon “poor
persons.” 4 The Commonwealth acknowledged that West was “determined to be
indigent from the beginning of his court proceedings and was appointed a
public defender” and stated that “the trial court, after reviewing West’s request
[to appeal in forma pauperis] and financial statement, entered an order finding
that West was a ‘poor person’ at the time of his sentencing.” Accordingly, the
Commonwealth agreed with West’s position and wrote “[t]he portion of West’s
judgments assessing fines and costs should be vacated.”
Following the Commonwealth’s briefing on this issue, this Court
published its decision in Jeffreys v. Commonwealth, 706 S.W.3d 51 (Ky. 2024),
which addressed the imposition of fines and costs and the standards by which
they may be avoided by those found to be indigent or poor. In Jeffreys we
explained that a trial court’s determination that a defendant’s lack of resources
3 Howard v. Commonwealth, 496 S.W.3d 471, 479 (Ky. 2016); KRS 534.030(4).
4 Spicer v. Commonwealth, 442 S.W.3d 26, 35 (Ky. 2014); KRS 453.190.
12 entitling the defendant to be provided counsel does not equate to a finding that
the person is impoverished such that they should not have fines or costs
imposed upon them as part of their sentence. The trial court’s determinations
that West was a poor person under KRS 453.190(2) 5 only regarded “costs” that
were “necessary to allow indigent persons access to the courts.” Jones v.
Commonwealth, 636 S.W.3d 503, 507 (Ky. 2021).
We make these observations to ensure that our opinion today does not
indicate any departure on our part from Jeffreys or any implied encouragement
by this Court to the Commonwealth to simply waive fines, costs or fees for
defendants if they have previously been found to be entitled to court-appointed
counsel. It is only due to the Commonwealth’s specific agreement with West’s
position here, and the fact that the Commonwealth has not sought to amend
its position following the rendition of Jeffreys, that we will not unilaterally
plumb the depths of the record to conduct an independent analysis and will
oblige the parties and vacate those portions of the trial court’s judgment
assessing fines and costs.
III. CONCLUSION
We affirm West’s conviction and sentences imposed by the Ohio Circuit
Court with the exception that the fines totaling $1,300.00, the court costs of
5 “A ‘poor person’ means a person who has an income at or below one hundred
percent (100%) on the sliding scale of indigency established by the Supreme Court of Kentucky by rule or is unable to pay the costs and fees of the proceeding in which he is involved without depriving himself or his dependents of the necessities of life, including food, shelter, or clothing.” (Emphasis added).
13 $165.00, and the service fee of $425.00 imposed within the trial court’s Formal
Sentencing Order of August 2, 2023, are hereby vacated.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kayley Barnes Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell Coleman Attorney General of Kentucky
Stephanie L. McKeehan Assistant Attorney General