IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 14, 2019 NOT TO BE PUBLISHED
ON APPEAL FROM BULLITT CIRCUIT COURT V. HONORABLE RODNEY D. BURRESS, JUDGE NO. 16-CR-00456
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Taira Litsey was indicted on multiple charges stemming from a routine
traffic stop that escalated into her fleeing from the police and severely injuring
an officer in the process. Litsey waived her right to a jury trial and at the close
of the proof, the trial court found Litsey guilty of first-degree assault, first-
degree wanton endangerment, fleeing police, operating a vehicle without a valid
license, and being a second-degree persistent felony offender (PFO II). As a
result of the PFO II enhancement, the trial court sentenced Litsey to forty
years.
On appeal, Litsey argues that: (1) the trial court erred by denying Litsey’s
motion for a directed verdict on first-degree assault-and first-degree wanton
endangerment, and (2) the trial court committed palpable error in finding that Litsey is a PFO II because the Commonwealth failed to prove she was eighteen
or older at the time the previous felony was committed. Finding no error, we
affirm the trial court.
FACTS AND PROCEDURAL HISTORY
While on regular patrol on July 3, 2016, Officer Besednjak ran the
license plate of the vehicle traveling in front of him. His search revealed that
the vehicle was registered to Taira Litsey, whose driver’s license was
suspended. Officer Besednjak initiated his emergency lights and Litsey pulled
into a gas station. Officer Besednjak alerted dispatch that he was making a
traffic stop. After stopping his vehicle behind Litsey, Officer Besednjak
approached the vehicle and asked Litsey for her identification and proof of
insurance, but she had none. Shortly thereafter, two additional officers arrived
on the scene. One of the other officers asked Litsey for her keys and when she
complied, he placed the keys on the roof of Litsey’s vehicle. After returning to
his vehicle and performing a quick search, Officer Besednjak learned that
Litsey had outstanding felony arrest warrants.
Officer Besednjak informed the other officers about the outstanding
warrants, then walked back over to Litsey and asked her to step out of the
vehicle. She claimed she needed to roll her windows up as she grabbed the
keys from the roof. Despite Officer Besednjak repeatedly telling her to stop and
exit her vehicle, she persisted. He reached in the vehicle attempting to get the
keys from her, but she was able to get the keys in the ignition and start the
vehicle. According to Officer Besednjak, the top half of his body was inside the
2 vehicle, reaching across her lap trying to get the keys. Despite the officer being
partially in her vehicle, Litsey took off at a high rate of speed, causing her tires
to squeal. Officer Besednjak was initially dragged with the vehicle until he fell
out and struck his upper back on a curb. He later testified that Litsey also ran
over his left calf as she fled.
Officer Besednjak got up and went back to his vehicle while yelling at the
other officers to pursue Litsey. He activated his lights and siren as he began
the pursuit, with dark and rainy conditions making it very difficult to see her
vehicle. The officers lost sight of Litsey’s vehicle, and therefore were not able to
catch her. Litsey and her passenger, Logan Lamb, drove at high speed for a
few minutes before pulling over behind a building. At some point, Litsey
turned her lights off. Once she stopped the vehicle, she ran away on foot.
That night, Officer Besednjak began a long process of medical treatment
for his injuries. At trial, his neurosurgeon testified that he suffered a herniated
cervical disc, which was surgically removed. Additionally, Officer Besednjak
testified that he continues to suffer significant pain and muscle weakness and
must take medication day and night to deal with his pain. He spends most of
his days on the couch to avoid putting pressure on his neck and has no plans
to return to work as a police officer. He also testified that he was currently in
the process of applying for retirement disability benefits and it is unlikely that
he can return to full-duty work.
Lamb, Litsey’s passenger during the incident, testified for the defense.
Lamb stated that he had known Litsey for about three months prior to the
3 event and their relationship centered around drug use. They were together
every day and most every night during that time period and slept very little.
Lamb testified that Litsey used drugs multiple times a day and that they had
both been awake for approximately three weeks straight at the time of the
incident.
According to Lamb, while fleeing from the police, Litsey stated she was
scared and did not want to go to jail. Litsey admitted that when she was
stopped by Officer Besednjak she knew she had outstanding arrest warrants.
Lamb estimated that she was driving approximately eighty miles per hour when
she fled from police, but Litsey denied driving that fast. Lamb was scared and
asked her to stop the vehicle.
Litsey was arrested in Jefferson County on July 5, 2016. Litsey pled not
guilty to the charges and waived her right to a jury trial. The bench trial began
on April 18, 2017. After a two-day trial, the trial court found Litsey guilty of
first-degree assault, first-degree wanton endangerment, fleeing police,
operating a vehicle without a valid license, and being a PFO in the second
degree (PFO II). The trial court sentenced Litsey to fifteen years for assault, one
year for wanton endangerment, five years for fleeing and evading, and ninety
days for driving with a suspended license, all to run concurrently. The PFO II
finding enhanced Litsey’s sentence for the assault charge, making her total
sentence forty years.
4 ANALYSIS
I. The trial court did not err in denying Litsey’s motions for directed verdict on the wanton endangerment and assault charges.
Litsey challenges the sufficiency of the evidence to support the wanton
endangerment and assault convictions. This issue is preserved by trial
counsel’s motion for a directed verdict at the close of the Commonwealth’s
proof on the two charges, and renewal of the motion at the end of all evidence.1
A trial court’s ruling on a motion for directed verdict is reviewed using
the standard set forth in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.
1991):
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. 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
1 In the trial court, Litsey moved for a directed verdict. However, since this was a bench trial, the trial court should have treated Litsey’s motion as a motion to dismiss under CR 41.02(2), which states: In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. Under this rule, “(t]he trial court ‘must weigh and evaluate the evidence’ rather than, with regard to directed verdict, ‘indulge every inference in the [Commonwealth's] favor.'" R.S. v. Commonwealth, 423 S.W.3d 178, 184 (Ky. 2014) (quoting Morrison v. Trailmobile Trailers, Inc., 526 S.W.2d 822, 824 (Ky. 1975)). A trial court’s ruling under CR 41.02(2) is reviewed for an abuse of discretion. Id. (citing Jaroszewski v. Flege, 297 S.W.3d 24, 31 (Ky. 2009)). Although Litsey used the wrong procedural method in both the trial court and her argument before this Court, it has no bearing on our holding in this case. Given the evidence against Litsey, we find no error.
5 is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.
In reviewing the evidence as a whole, we cannot say that it was “clearly
unreasonable” for the trial court, as fact-finder in this bench trial, to find guilt
on either charge and therefore Litsey was not entitled to a directed verdict. For
clarity, the wanton endangerment and first-degree assault charges will be
discussed separately.
A. Litsey was not entitled to a directed verdict on the wanton endangerment charge.
Under Kentucky Revised Statute (KRS) 508.060(1), “[a] person is guilty of
wanton endangerment in the first degree when, under circumstances
manifesting extreme indifference to the value of human life, he wantonly
engages in conduct which creates a substantial danger of death or serious
physical injury to another person.”
A person acts wantonly . . . when [she] 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).
Litsey was convicted of first-degree wanton endangerment in relation to
her actions against the passenger in her vehicle, Logan Lamb. On appeal, she
contests the sufficiency of the evidence supporting this conviction. Specifically, 6 Litsey argues that her actions differ dramatically from the actions of other
drivers in cases where this Court has found wanton endangerment in the first
degree.2 However, “in ruling on a motion for directed verdict, the test is not
how Appellant’s behavior compares with previous defendants, but whether a
jury could reasonably conclude, viewing the evidence in the light most
favorable to the State, that Appellant was driving so wantonly as to manifest
extreme indifference to human life.” Ramsey, 157 S.W.3d at 197. Litsey’s
comparison of her actions to other cases where this Court has found wanton
endangerment is misplaced. Further, “whether wanton conduct demonstrates
extreme indifference to human life is a question to be decided by the trier of
fact.” Brown, 297 S.W.3d at 560. Here, the trial court was tasked with
determining whether Litsey wantonly endangered Lamb through her actions.
In considering the statutory elements above and viewing the evidence in
a light most favorable to the Commonwealth, it was not clearly unreasonable
for the trial court to find that Litsey wantonly endangered Lamb. Both Lamb
and the officers testified that it was dark outside and raining heavily while
Litsey fled from police. According to Lamb, and admitted by Litsey herself, she
2Litsey compares her case to (1) Hurt v. Commonwealth, where this Court found that the defendant’s act of pursuing, ramming and forcing another vehicle off an embankment constituted a substantial risk of death to the passengers in the other vehicles. 409 S.W.3d 327 (Ky. 2013); (2) Brown v. Commonwealth, where this Court found that the defendant’s attempts to evade police by driving down the center of the road, causing other vehicles to swerve to avoid collisions, was sufficient for a finding of first-degree wanton endangerment. 297 S.W.3d 557 (Ky. 2009); and (3) Ramsey u. Commonwealth, where this Court found that the defendant committed first-degree wanton endangerment by operating his vehicle while intoxicated with a ten-year old as his passenger. 157 S.W.3d 194 (Ky. 2005).
7 was high on drugs at the time of the incident and had not slept for at least
three weeks prior. Despite Officer Besednjak’s orders to stop and him being
partially inside the vehicle, Litsey took off so fast that the tires squealed.
Although there were contradictory estimates as to how fast Litsey was driving,
Lamb stated that 80'miles per hour was a fair estimate. There was also
contradicting testimony as to whether the vehicle’s lights were on, with Officer
Besednjak stating that the vehicle’s lights were not on and Litsey and Lamb
stating the lights were on. In any event, Litsey drove fast enough to evade
police that night.
Litsey also argues that Lamb never expressed any fear that his life was
threatened by her actions, and never demanded that she stop so he could
escape from what he perceived as a life-threatening situation. However, he
testified that he was scared because they were “running from the law.”
Further, Litsey testified that Lamb was yelling at her to stop the vehicle. Both
Lamb and Litsey testified that he asked her, even yelled at her, to stop the
vehicle.
We will reverse a trial court’s denial of a motion for directed verdict “if
under the evidence as a whole, it would be clearly unreasonable for a jury to
find guiltf.]” Benham, 816 S.W.2d at 187 (emphasis added). On a motion for
directed verdict, the trial court is required to presume the Commonwealth’s
proof is true and draw all reasonable inferences in favor of the Commonwealth.
In doing so, it was not unreasonable for the trial court to deny the motion for
directed verdict as to the wanton endangerment charge. Litsey stated that she
8 just wanted to get away from the police. She knew she had outstanding
warrants and knew the danger of the situation, but regardless she did not want
to go to jail. Litsey created circumstances that posed a risk of serious physical
injury or death not only to herself, but to Lamb as well. Her efforts in eluding
the police reflected a conscious disregard of those risks.
Litsey’s conduct of fleeing from law enforcement at high speeds, in the
dark, in the pouring rain, while sleep-deprived and under the influence of
drugs constitutes wanton conduct. While some of Litsey’s testimony
contradicts the Commonwealth’s, this does not mean the trial court’s denial of
a directed verdict was in error. The trial court was tasked with looking at all
the evidence in a light most favorable to the Commonwealth. “It should be
remembered that the trial court is certainly authorized to direct a verdict for
the defendant if the prosecution produces no more than a mere scintilla of
evidence. Obviously, there must be evidence of substance.” Commonwealth v.
Sawhill, 660 S.W.2d 3, 5 (Ky. 1983). Here the Commonwealth presented
evidence of substance to support the wanton endangerment charge, and the
trial court properly denied Litsey’s motion for a directed verdict.
B. Litsey was not entitled to a directed verdict on the first- degree assault charge.
At the close of the Commonwealth’s proof, Litsey moved for a directed
verdict on the first-degree assault charge based on a lack of proof of the
requisite state of mind. The trial court denied the motion and ultimately found
Litsey guilty on the charge. A person is guilty of assault in the first-degree
when “[u]nder circumstances manifesting extreme indifference to the value of 9 human life [she] wantonly engages in conduct which creates a grave risk of
death to another and thereby causes serious physical injury to another
person.” KRS 508.010(l)(b).
On appeal, Litsey specifically argues that insufficient evidence existed to
show that she was aware that restarting her vehicle and driving out of the gas
station constituted a substantial and unjustifiable risk to Officer Besednjak.
She claims that had she been aware that he was thrusting his body into her
vehicle, her subsequent actions would establish the necessary wanton conduct
on her part. However, she states that all of the testimony, as well as the video
evidence, establish that Litsey was not aware of the danger her actions posed
to Officer Besednjak. We disagree.
The testimony at trial contradicts her argument. Litsey herself admitted
that Officer Besednjak grabbed her hand, but she already had the keys in the
ignition. In order for the officer to have his hand on the keys while she had the
keys in the ignition, part of his body had to be in the vehicle. On cross-
examination, she admitted that the officer’s arm was inside her vehicle when
she took off, although she did not recall where his head was located at the
time. She knew he wanted her to get out of the vehicle, but she just wanted to
get away from him. She admitted that she was not thinking about the
potential danger of the situation. Further, Lamb testified that Officer
Besednjak was trying to get the keys from Litsey and at the time she took off,
the officer’s hands were near the ignition switch of the vehicle. This further
10 indicates that a significant portion of the officer’s body was in the vehicle when
Litsey fled.
The Commonwealth also introduced footage from the body camera Officer
Besednjak wore during the incident. The footage shows that Litsey ignored
Officer Besednjak’s repeated instructions to get out of the vehicle. Litsey
instead proceeded to retrieve the keys from the roof of her vehicle and start the
vehicle. The footage shows that Officer Besednjak was partially inside her
vehicle to prevent her from fleeing when she took off at a high rate of speed. A
reasonable person would recognize that driving away while someone is partially
inside her vehicle creates a substantial danger of serious physical injury or
death. Further, Litsey’s admission that the officer grabbed her hand while she
had the keys in the ignition shows that she consciously disregarded any risk of
danger to Officer Besednjak, satisfying the wanton requirement under KRS
508.010(l)(b).
To reiterate the standard for a directed verdict, the court must presume
the Commonwealth’s proof is true and draw all reasonable inferences in favor
of the Commonwealth. Benham, 816 S.W.2d at 187-88. In order to find that
the trial court erred, this Court must determine that it was clearly
unreasonable for the fact-finder to find guilt on the first-degree assault charge.
Id. A motion for directed verdict is “reviewed in light of the proof at trial and
the statutory elements of the alleged offense.” Acosta v. Commonwealth, 391
S.W.3d 809, 816 (Ky. 2013).
11 The Commonwealth presented sufficient evidence to support a
reasonable belief that Litsey’s conduct constituted an extreme indifference to
the value of human life, created a grave risk of death, and caused serious
physical injury to Officer Besednjak. “[W]hether wanton conduct demonstrates
extreme indifference to human life is a question to be decided by the trier of
fact.” Brown, 297 S.W.3d at 560. Litsey disregarded the officer’s orders and
acted dangerously to avoid arrest. While she did escape from police for a short
time, her actions resulted in serious physical injury to the officer who now has
little to no prospects of returning to his duties as a police officer. Because of
Litsey’s actions, Officer Besednjak endured significant physical pain, multiple
doctors’ visits, and surgery, thus satisfying the “serious physical injury”
requirement of first-degree assault.
Through the testimony of several officers, Litsey, and Lamb, the trial
court found “more than a scintilla” of evidence to support the first-degree
assault charge, and thereby correctly denied the motion for directed verdict.
Acosta, 391 S.W.3d at 816. The testimony at trial satisfied the
Commonwealth’s burden for overcoming a directed verdict on the first-degree
assault charge. Although Litsey presented some contradictory testimony, the
trial court was tasked with reviewing all evidence in a light most favorable to
the Commonwealth. Given the evidence presented to the trial court, Litsey’s
motion for directed verdict was properly denied.
12 II. There was sufficient evidence to support Litsey’s conviction as a persistent felony offender.
In the indictment, Litsey was charged with being a persistent felony
offender in the first degree (PFO I). During trial, the Commonwealth amended
the first-degree PFO charge down to a second-degree PFO charge, and the trial
judge ultimately found Litsey to be a PFO II. Litsey argues that there was
insufficient proof to support the PFO II conviction because no evidence
established that she was over eighteen when she committed her previous
felony.
This issue is not preserved and will therefore be reviewed under the
palpable error standard. Kentucky Rule of Criminal Procedure (RCr) 10.26
states that an unpreserved error may be considered on appeal only if the error
is palpable and “affects the substantial rights of a party.” A trial court will be
reversed for palpable error when “manifest injustice has resulted from the
error.” Elery v. Commonwealth, 368 S.W.3d 78, 98 (Ky. 2012). This Court has
explained that manifest injustice has resulted if the error “so seriously affected
the fairness, integrity, or public reputation of the proceeding as to be shocking
or jurisprudentially intolerable.” Miller v. Commonwealth, 283 S.W.3d 690, 695
(Ky. 2009) (citations omitted). “[A] palpable error affects the substantial rights
of a party only if it is more likely than ordinary error to have affected the
judgment.” Kiper v. Commonwealth, 399 S.W.3d 736, 747 (Ky. 2012) (citations
omitted).
In order to establish that Litsey was eligible for sentencing enhancements
provided by the PFO II statute, the Commonwealth was required to prove: (1) 13 that Litsey was more than 21 years old; (2) that she stood convicted of a new
felony offense; (3) that she was previously convicted of another felony offense
which she was sentenced to a term of imprisonment of at least one year; (4)
that she was over eighteen years old when she committed the prior felony
offense; and (5) that she completed service of the sentence imposed for the
previous felony conviction within five years prior to the commission of the
felony for which she now stands convicted.3 KRS 532.080.
During the sentencing phase, the Commonwealth called two officers to
testify in support of the PFO II charge. The first officer testified that Litsey’s
birthdate is October 16, 1984. The second officer testified about a record
search he performed on Litsey and her four previous convictions from Jefferson
and Warren Counties. Litsey’s convictions in Warren County resulted in an
eight-year sentence, ordered to run consecutively with her previous five-year
sentence in the Jefferson County cases, for a total sentence of thirteen years.
Her sentence began on March 24, 2005, with a serve out date on January 30,
2014. The trial court focused on Litsey’s felony convictions in the Warren
County cases, involving third-degree assault and bail jumping, for purposes of
the PFO 2 conviction.
3 KRS 532.080(c) provides five different grounds in order to satisfy this prong of being a persistent felony offender in the second degree. Completing service of the sentence imposed for the previous felony conviction within five years prior to the commission of the felony for which she now stands convicted is the prong that the Commonwealth chose to use in seeking the PFO II enhancement.
14 Litsey argues that the Commonwealth did not prove that she was
eighteen at the time she committed the previous felonies. The officer who
testified about the record search he performed gave the conviction dates for the
crimes but did not give the dates the prior offenses were committed. Litsey is
correct in her assertion that to be a PFO II, the offender must have been
eighteen or older when the previous felony was committed. KRS 532.080(2)(b).
However, the Commonwealth introduced certified court records from the
Warren County cases, and those records included the citations, which show
that the offenses were committed in 2006 and 2007. The Commonwealth may
introduce indirect evidence of a defendant’s age at the time she committed the
prior offenses “so long as the indirect evidence is sufficient to create a
reasonable inference that the offender was eighteen at the time [she] committed
the underlying offense.” Moody v. Commonwealth, 170 S.W.3d 393, 397 (Ky.
2005). We have deemed it acceptable to use simple subtraction to calculate an
offender’s age at the time she committed the offense. Maxie v. Commonwealth,
82 S.W.3d 860, 864 (Ky. 2002). With a birth year of 1984, it is clear that Litsey
was over the age of eighteen in 2006 and 2007.
The Commonwealth met all five outlined requirements for proving
Litsey’s status as a PFO II. Simple subtraction proves that she was over 21
years old when convicted of the felonies in the present case, and wanton
endangerment, first-degree assault, and fleeing and evading police are all
felonies under Kentucky law. Litsey’s previous felony convictions resulted in a
thirteen-year sentence, which is well over the one-year sentence required under
15 the PFO II statute. The dates of the offenses contained in the certified Warren
County records, and made a part of the record before the trial court, prove that
Litsey was at least eighteen years old at the time she committed the previous
felonies. Finally, her serve out date for the previous sentence was January 30,
2014, which means she completed her prior felony sentence within five years
prior to when the present felonies were committed on July 3, 2016. Therefore,
all required elements of KRS 532.080(2) were satisfied and there was no
palpable error in the court determining Litsey is a PFO II.
CONCLUSION
For the foregoing reasons, we affirm the conviction and sentence of the
Bullitt Circuit Court.
C.J. Minton; Hughes, Keller, Lambert, VanMeter, and Wright, JJ., sitting.
All concur.
COUNSEL FOR APPELLANT:
Joseph R. Eggert Mark Wettle
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Jeffrey Allan Cross Assistant Attorney General