ERIC PAUL JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

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Court of Appeals of Kentucky.

ERIC PAUL JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2009–CA–002094–MR

-- April 20, 2012

BEFORE:  CAPERTON AND DIXON, JUDGES;  LAMBERT,SENIOR JUDGE.Double BRIEFS FOR APPELLANT:  Roy A. Durham Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General John Paul Varo Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING IN PART, ANDREVERSING AND REMANDING IN PART

Eric Paul Johnson, hereinafter “Appellant,” appeals from the Daviess Circuit Court's final judgment of conviction for charges of assault in the first degree, wanton endangerment in the first degree, fleeing or evading police in the first degree, possession of a controlled substance in the first degree, criminal mischief in the first degree, and resisting arrest.   Appellant received a total sentence of fifteen years' imprisonment and a $500.00 fine.   After reviewing the record, we affirm as to all issues with the exception of the trial court's imposition of a fine and court costs.   As to that decision, we reverse and remand for entry of an order consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On the night of January 12, 2008, Shelly McKee was merging onto the William Natcher Parkway heading northbound towards Owensboro when she came upon a van driving in the left lane with its flashers on.   Appellant was driving the van.   As Shelly approached the van to pass, Appellant ran her off the road into the emergency lane.   Appellant then began throwing items out of the van, some of which struck her vehicle.   Shelly stayed behind the van and did not attempt to pass again.   As he drove, Appellant was switching lanes and changing speeds, and he continued to throw items out of the van.

Shelly called her husband Chris McKee, a Kentucky State Trooper.   Trooper McKee was off duty and at home.   While talking to her husband about what was happening, a milk crate was thrown out of the van and hit Shelly's vehicle.   Trooper McKee told Shelly that he was getting in his police cruiser and coming to help.   He subsequently informed his state police post that he was in his cruiser (code “10–6”) and in service (code “10–8”), and he relayed the information from Shelly.   He also asked if any other troopers were working in the area.

While travelling, Trooper McKee contacted Shelly to determine her location.   She was passing mile marker 64 heading northbound at the same time that Trooper McKee was passing mile marker 66 heading southbound.   Trooper McKee subsequently saw Appellant's van coming towards him.   As the van approached, Trooper McKee pulled into the median and turned in behind Appellant with his lights and siren activated.   Trooper McKee pursued Appellant for approximately three-and-a-half minutes.   Appellant did not exceed the speed limit and remained in the left lane, but he refused to pull over and continued to throw items out of the van.

Troopers Matt Weiss and Jonathan Whittaker were on a call together and left that scene to respond to Trooper McKee's request for assistance.   As Trooper Whittaker entered the Natcher Parkway, he received permission from his supervisor, Sergeant Lonnie Bell, to deploy tire deflation devices known as “stop sticks” or “stingers” to deflate Appellant's tires.   Sergeant Bell authorized the stingers in order to end the pursuit before it entered the Owensboro city limits.

As they approached mile marker 69, Trooper Whittaker pulled his police cruiser into the median and Trooper Weiss pulled off to the side of the road.   Both cruisers were facing southbound and had their emergency lights activated.   They were located on a stretch of the parkway from which they could see approximately a mile down the road.   Trooper Whittaker retrieved the stingers from his trunk while Trooper Weiss held a flashlight for him.   When Trooper Whittaker closed the trunk he saw Appellant's van coming straight at them.   He dove out of the way and narrowly avoided being hit.

However, the van struck Trooper Weiss and Trooper Whittaker's cruiser.   Trooper Weiss's body came to rest approximately 55 feet from the point of impact.   As a result of the impact, Trooper Weiss suffered a fracture to his left leg that left bone protruding from his skin.   He also received a concussion, a bruised kidney, and a pelvic injury.   Trooper Weiss subsequently underwent three surgeries to place a metal rod and screws in his shattered leg and to later remove them.   He also missed over a year of work.

After the collision, Appellant's van continued up the median for nearly 1,200 feet.   Appellant exited the van as it came to a stop and began running up the road.   Trooper McKee exited his vehicle and ran after Appellant in pursuit.   He was not in uniform at the time but yelled, “State police!   Stop!” during the chase.   Trooper McKee chased down Appellant and tackled him to the ground.   Appellant was kicking, punching, and trying to get away.   Two uniformed officers appeared minutes later and placed Appellant in custody.   According to Trooper McKee, during the struggle Appellant screamed, “They gave me poisoned drugs!” and “They poisoned my meth!”   Following his arrest, Appellant was taken to the hospital for treatment.   A nurse cut off one of his socks and discovered two plastic baggies containing a white substance that was later determined to be methamphetamine.

The Daviess County Grand Jury indicted Appellant on charges of assault in the first degree, wanton endangerment in the first degree, fleeing or evading police in the first degree, possession of a controlled substance in the first degree, criminal mischief in the first degree, resisting arrest, and tampering with physical evidence.   Appellant entered a plea of “not guilty,” and the case proceeded to trial.

At trial, Appellant's primary theory of defense was that he was legally insane at the time of the incident.   Appellant had been diagnosed with bipolar disorder (type 1 – manic) in 2004.   The disorder has hallmarks of very high energy, decreased need for sleep, fast rate of speech, racing thoughts, and poor judgment.   Appellant's particular version of the disorder also had psychotic features, including breaks with reality and paranoid delusions –including a recurring fear that others were out to get him and his life was in danger.   Appellant contended that such issues were at play during the incident in question.   Appellant also asserted that the actions of the troopers caused him to run off the road and to lose control of his vehicle.

At the conclusion of the evidence, the Commonwealth withdrew the charge of tampering with physical evidence.   The jury found Appellant “guilty but mentally ill” of all remaining charges and recommended that he serve a total sentence of fifteen years' imprisonment and that he pay a $500.00 fine.   Appellant was also ordered to pay $155.50 in court costs.

Appellant now appeals as a matter of right.   Further facts will be provided where relevant.

ISSUES

I. Appellant Was Not Denied Due Process When the Trial Court Denied His Motion for Directed Verdict.

Appellant first argues that the trial court erroneously denied his motion for directed verdict on the assault, wanton endangerment, fleeing or evading police, and criminal mischief charges because the evidence presented by the Commonwealth was insufficient to support a conviction on any of these counts.   Appellant contends that each of these charges requires the Commonwealth to prove that he intended to cause the subject collision and that this burden was not met.

Our review of this argument is governed by the standards set forth in Commonwealth v. Benham, 816 S.W.2d 186 (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 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.

Id. at 187.  “The Commonwealth bears a burden of proof in establishing each element of the charged crime, else a motion for a directed verdict by the defendant must be properly entertained.”  Williams v. Commonwealth, 721 S.W.2d 710, 712 (Ky.1986).   Further, Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky.1983), requires the Commonwealth to produce “evidence of substance” and affords the trial court express authorization to direct a verdict for the defendant if the Commonwealth “produces no more than a mere scintilla of evidence” in proving each element of the alleged criminal violation.  Id. at 5.

With these standards established, we now address Appellant's arguments as to each charge.

A. Appellant Was Not Entitled to a Directed Verdict on the Charge of Assault in the First Degree.

KRS 508.010(1) provides that a person is guilty of assault in the first degree when:

(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.

Appellant argues that he was entitled to a directed verdict on the charge of assault in the first degree because the evidence presented at trial supported the conclusion that he did not intentionally collide with Trooper Weiss.   Instead, the evidence reflected that Appellant merely lost control of his van and that the accident was exacerbated by the overzealous actions of police.

Appellant bases the argument that he lost control of the van on the following evidence:  (1) he was not speeding or driving erratically before entering the median;  (2) tire tracks suggested that the van was traveling at an angle, i.e., sliding, before hitting the police cruiser;  (3) it would have been difficult for him to see Troopers Weiss and Whittaker standing behind the cruiser;  and (4) one of the van's front tires was found to be punctured and the other deflated upon later inspection.   To support his position, Appellant produced testimony from Roman Kickirillo, an expert witness specializing in vehicle accident reconstruction and vehicle failure analysis.   Kickirillo testified that it would have been difficult for Appellant to see troopers standing behind a cruiser with its headlights on and other lights flashing.   He further testified that tire tracks examined at the scene suggested that Appellant's van was out of control as it slid into the median.   He finally noted that a deflated tire or a tire being knocked off of a rim would make it difficult for a driver to control a vehicle.

Appellant contends that this evidence made it unreasonable for a juror to believe that his conduct was intentional because it established that he had lost control of his van prior to the collision.   Moreover, Appellant argues, the only evidence showing that he had acted intentionally came from the testimony of police.   Thus, Appellant maintains that a juror could not have reasonably believed he was guilty of assault and he was therefore entitled to a directed verdict.

While the evidence cited by Appellant is certainly notable, it was not so overwhelming as to merit a directed verdict since it was not “clearly unreasonable” for the jury to find guilt in this instance.  Benham, 816 S.W.2d at 187.   We first note that the jury viewed Trooper McKee's in-car video, which shows the pursuit and collision.   The video shows Trooper McKee in pursuit of a white van.   The van is not weaving or being driven erratically.   As the van reaches the area where Trooper Weiss's and Trooper Whittaker's cruisers were parked, it quickly drives into the median where the collision occurs, then can be seen accelerating in an effort to get back on the road.   Appellant then exited the vehicle and attempted to flee the scene on foot.

Moreover, as noted by the Commonwealth, the jury heard testimony that the weather was clear on the night in question, that the police cruisers were visible from 1.2 miles away, that the road was in good condition, and that the brakes and steering of Appellant's van were in working order.   Testimony produced by the Commonwealth also indicated that the van's punctured and deflated tires were likely caused by the impact with Trooper Whittaker's cruiser.   Our law recognizes that “intent can be inferred from the act itself and the surrounding circumstances.”  Mills v. Commonwealth, 996 S.W.2d 473, 490 (Ky.1999), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky.2010).   Viewing the evidence in a light most favorable to the Commonwealth, an intent to cause the subject collision could be inferred from these acts.

We further note that assault in the first degree also may be proven by wanton conduct where “[u]nder circumstances manifesting extreme indifference to the value of human life” a defendant “creates a grave risk of death to another and thereby causes serious physical injury to another person.”  KRS 508.010(1)(b).  In this case, the evidence reflected that Appellant drove his van in the direction of two parked police cruisers with their emergency lights flashing at what was estimated at trial to be 55 to 60 miles per hour.   Additional video evidence and testimony demonstrated that the van was not speeding or swerving when it entered the median, and after the collision the van did not stop or slow down but continued up the median.   Appellant then exited the van and attempted to run away on foot before being subdued.   Based on these actions and circumstances, it would not have been unreasonable for the jury to conclude that Appellant acted in a wanton fashion and thereby created a grave risk of death, as a result of which Trooper Weiss was seriously injured.   While Appellant argues that he could not see the police officers standing behind Trooper Whittaker's cruiser, it is reasonable to assume that an officer would be either in or near his cruiser parked in the median of a parkway, at night, with his emergency lights flashing.   Therefore, the trial court did not err in denying Appellant's motion for a directed verdict as to the charge of assault in the first degree and in presenting the question of guilt to the jury.

B. Appellant Was Not Entitled to a Directed Verdict on the Charge of Wanton Endangerment in the First Degree.

Appellant also contends that he was entitled to a directed verdict on the charge of wanton endangerment in the first degree because the evidence did not show that he intended to cause the accident.   This argument must also fail.  “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.”  KRS 508.060(1).   For the same reasons noted above, the jury could have also reasonably found that Appellant created a substantial danger of death or serious physical injury to Trooper Whittaker, who testified that he dove out of the way to narrowly avoid being struck by Appellant's van.   Given the injuries suffered by Trooper Weiss, it is fair to say that Appellant's conduct put Trooper Whittaker at risk of death or serious physical injury.   Appellant's arguments to the contrary are unavailing.

C. Appellant Was Not Entitled to a Directed Verdict on the Charge of Fleeing or Evading Police in the First Degree.

Appellant next contends that he was entitled to a directed verdict as to the charge of fleeing or evading police in the first degree.  KRS 520.095 provides, in relevant part, that a person is guilty of fleeing or evading police in the first degree “[w]hen, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer,” and “[b]y fleeing or eluding, the person is the cause, or creates substantial risk, of serious physical injury or death to any person or property[.]”  KRS 520.095(1)(a)(4).

In addition to testimony from Trooper McKee, the jury was shown the video documenting Trooper McKee's pursuit of Appellant.   This evidence showed that Trooper McKee pursued Appellant with his emergency lights and sirens engaged for approximately three-and-a-half minutes, but Appellant refused to pull over.   Testimony was also presented to the jury showing that during this pursuit, Trooper Weiss was struck by Appellant's van and Trooper Whittaker narrowly escaped being struck.   Consequently, the trial court did not err in denying Appellant's motion for a directed verdict as to this charge.

D. Appellant Was Not Entitled to a Directed Verdict on the Charge of Criminal Mischief in the First Degree.

Appellant next argues that he was entitled to a directed verdict on the charge of criminal mischief in the first degree.  KRS 512.020 provides that “[a] person is guilty of criminal mischief in the first degree when, having no right to do so or any reasonable ground to believe that he has such right, he intentionally or wantonly defaces, destroys or damages any property causing pecuniary loss of $1,000 or more.”  KRS 512.020(1).   The Commonwealth claims that this issue is not adequately preserved for appeal and, if it should be reviewed at all, it should be reviewed for palpable error under Kentucky Rules of Criminal Procedure (RCr) 10.26.   However, regardless of whether the issue is properly preserved, Appellant was not entitled to a directed verdict on the criminal mischief charge.

Appellant argues that that a directed verdict was warranted since no evidence showed that he intentionally hit Trooper Whittaker's cruiser.   Again, though, Appellant overlooks the fact that criminal mischief in the first degree may be proven by wanton conduct.   Ultimately, though, this distinction is of little difference since the evidence plainly showed that Appellant drove his van in the direction of Trooper Whittaker's parked cruiser and hit it.   Considering all of the evidence in a light most favorable to the Commonwealth, it was not “clearly unreasonable” for the jury to conclude that Appellant either intentionally or wantonly drove the van into Trooper Whittaker's cruiser.   Therefore, a directed verdict was not merited as to this charge.

II. The Trial Court Did Not Err in Denying Appellant's Requests for Jury Instructions on Extreme Emotional Disturbance and Fleeing or Evading Police in the Second Degree.

Appellant next argues that the trial court erroneously denied his request that the jury be instructed on the lesser-included offenses of assault under extreme emotional disturbance (EED) and fleeing or evading police in the second degree because the evidence supported instructions on those theories.   For reasons that follow, we disagree.

“Ordinarily, the trial court has the duty to instruct the jury on the whole law of the case, including any lesser-included offenses supported by the evidence.”  Crain v. Commonwealth, 257 S.W.3d 924, 928 (Ky.2008);  see also Mondie v. Commonwealth, 158 S.W.3d 203, 205 (Ky.2005).   This is required “when a guilty verdict as to the alternative crime would amount to a defense to the charged crime, i.e., when being guilty of both crimes is mutually exclusive.”  Hudson v. Commonwealth, 202 S.W.3d 17, 22 (Ky.2006).

However, this rule does not require an instruction on a theory unsupported by the evidence.  Crain, 257 S.W.3d at 928;  Thompkins v. Commonwealth, 54 S.W.3d 147, 151 (Ky.2001).   Thus, the lesser-included offense instruction is given “only when the state of the evidence is such that a juror might entertain reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that the defendant is guilty of the lesser offense.”  Billings v. Commonwealth, 843 S.W.2d 890, 894 (Ky.1992);  see also Skinner v. Commonwealth, 864 S.W.2d 290, 298 (Ky.1993).

When a defendant claims the trial court erred in failing to give a requested instruction, we review the evidence in a light most favorable to the party requesting the instruction.  Thomas v. Commonwealth, 170 S.W.3d 343, 347 (Ky.2005);  see also Ruehl v. Houchin, 387 S.W.2d 597, 599 (Ky.1965).   We review the trial court's ruling denying Appellant's request for additional instructions for abuse of discretion.  Tunstull v. Commonwealth, 337 S.W.3d 576, 583 (Ky.2011);  Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky.2006).

A. The Trial Court Did Not Err by Refusing to Instruct the Jury on Assault Under EED.

Appellant first asserts that he was entitled to an instruction on assault under EED, a lesser-included offense of assault in the first degree, because he was experiencing a delusional episode at the time of the subject incident and because he had just had an argument with his girlfriend that had put him in a highly agitated state.   The trial judge denied the request, finding that Appellant's delusional episode was not a triggering event and that his argument with his girlfriend did not merit an EED instruction. Double

Under KRS 508.040, a defendant charged with intentionally causing physical injury or serious physical injury may establish that he acted under EED in mitigation of the offense.   EED is “a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes.”  McClellan v. Commonwealth, 715 S.W.2d 464, 468–69 (Ky.1986).   EED is not a mental disease in itself, and it requires “a reasonable explanation or excuse therefor, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under circumstances as defendant believed them to be.”  Id. at 469.

A defendant is not entitled to an instruction on EED “merely because he exhibits behavior akin to mental illness or the effects of substance abuse.”   Bowling v. Commonwealth, 873 S.W.2d 175, 179 (Ky.1993).   Instead, “adequate provocation” is required.  Fields v. Commonwealth, 44 S.W.3d 355, 359 (Ky.2001).   Thus, while mental illness is relevant in measuring the reasonableness of a defendant's reaction to provocation, it, standing alone, does not constitute EED. Id. at 358;  McClellan, 715 S.W.2d at 468.

EED is only established “by a showing of some dramatic event which creates a temporary emotional disturbance.   There must be a ‘triggering event,’ which triggers an explosion of violence on the part of the defendant at the time he committed the offense.”  Baze v. Commonwealth, 965 S.W.2d 817, 823 (Ky.1997) (internal citation omitted).   Evidence of mere duress or gradual victimization by the environment, or evidence that the defendant was uneasy and upset, does not suffice to prove EED. Id. Similarly, “[e]vidence of mere ‘hurt’ or ‘anger’ is insufficient to prove extreme emotional disturbance.”   Talbott v. Commonwealth, 968 S.W.2d 76, 85 (Ky.1998).

The event which triggers the explosion of violence on the part of the criminal defendant must be sudden and uninterrupted.  Springer v. Commonwealth, 998 S.W.2d 439, 452 (Ky.1999).   However, there is no definite time frame between the triggering event and the actual offense required to establish EED, so long as the triggering event remains uninterrupted.  Id. Moreover, the triggering event “may ‘fester in the mind’ before surfacing to exact its damage.”   Benjamin v. Commonwealth, 266 S.W.3d 775, 783 (Ky.2008), quoting Springer, 998 S.W.2d at 452.   The concept of “adequate provocation” is also broad enough to include the collective impact of a sequence of related events.  Fields, 44 S.W.3d at 359.   Furthermore, “there exists a ‘subsidiary inquiry’ as to whether there intervened between the provocation and the [offense] a cooling-off period sufficient enough to preclude a conclusion that the provocation was adequate.”  Id. Ultimately, “[t]here must be some definitive, non-speculative evidence to support an EED instruction.”  Hudson v. Commonwealth, 979 S.W.2d 106, 109 (Ky.1998).

Since Appellant did not testify, the factual basis for determining whether the jury might have a reasonable doubt whether he was acting under EED came primarily from a police interview with Appellant's girlfriend.   Following the subject incident, KSP Trooper Brian McKinney spoke with Appellant's live-in girlfriend of two-and-a-half years, Connie Blair.   According to Trooper McKinney, Blair indicated that Appellant was at her house on the day of the incident.   When she took a phone call from her daughter, Appellant “snapped” and an argument ensued.   Appellant then took his belongings and left.   Blair also told Trooper McKinney that Appellant was constantly paranoid and believed that the police were out to get him.

Appellant contends that the argument between him and Blair, when considered along with his bipolar disorder and paranoia, was a sufficient trigger causing his state of mind to be so enraged, inflamed, or disturbed as to overcome his judgment not to steer his van towards two parked police cruisers.   At the time of the incident, Appellant was not on medication for his bipolar disorder.   Appellant further contends that this state of mind was exacerbated by the “overzealous” actions of police in pursuing him.

In this case, the primary “triggering event” cited by Appellant is an argument with his girlfriend following a phone call.   Appellant's brief has provided this Court with no specifics about the call or why it made him so angry.   Moreover, as noted above, evidence of mere “hurt” or “anger” is insufficient to prove EED. Talbott, 968 S.W.2d at 85.   Standing alone, then, this incident did not constitute “adequate provocation” meriting an EED instruction.

Appellant also speculates that EED could have been triggered by Trooper McKee pulling up behind him;  however, this does not constitute the type of “dramatic event” which creates a temporary emotional disturbance.   See Baze, 965 S.W.2d at 823.   Moreover, as noted above, “[t]here must be some definitive, non-speculative evidence to support an EED instruction.”  Hudson, 979 S.W.2d at 109.   Since Appellant did not testify, it is entirely unclear what immediate effect Trooper McKee's pursuit had on his mental state or if his mental state actually changed at all at that moment.   Without more concrete evidence in this regard beyond a general contention that Appellant was paranoid towards police, an EED instruction was not merited.

We further note that while Appellant's delusion that the police were out to get him may be consistent with his bipolar disorder, the evidence established that Appellant was a methamphetamine user and had used methamphetamine on the day in question.   Two clinical psychologists testified at trial that Appellant's methamphetamine use could have affected his behavior and his delusional state on that day, but neither could say to what extent.   Consequently, it is unclear as to what extent Appellant's paranoia was the product of his bipolar disorder as opposed to his methamphetamine use that day.   It is notable, however, that when Appellant was finally apprehended he screamed, “They gave me poisoned drugs!” and “They poisoned my meth!”

Ultimately, we do not believe that the trial court abused its discretion by denying Appellant's request for an instruction on assault under EED since the court could reasonably conclude that Appellant had failed to meet the considerable burden for that instruction.   Thus, no error occurred in this regard.

B. The Trial Court Did Not Err by Refusing to Instruct the Jury on Fleeing or Evading Police in the Second Degree.

Appellant next contends that the trial court erred in denying a jury instruction on fleeing or evading police in the second degree, which is a lesser-included misdemeanor offense of fleeing or evading police in the first degree.   A person is guilty of the lesser offense when, “[w]hile operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a recognized direction to stop his vehicle, given by a person recognized to be a peace officer.”  KRS 520.100(1)(b).  In contrast, a conviction for fleeing or evading police in the first degree requires proof of an additional aggravating factor – in this case that “[b]y fleeing or eluding, the person is the cause, or creates substantial risk, of serious physical injury or death to any person or property[.]”  KRS 520.095(1)(a)(4).

A jury instruction on fleeing or evading police in the second degree is unwarranted where “[n]o reasonable juror could acquit Appellant on the charge of creating a substantial risk of injury to a person while fleeing or evading the police and yet find him guilty of fleeing or evading the police without causing such risk or actual injury.”  Crain, 257 S.W.3d at 929–30;  see also Lawson v. Commonwealth, 85 S.W.3d 571, 576 (Ky.2002).   Here, it is clear that Appellant caused a substantial risk of injury to a person in his failure to heed Trooper McKee's request to pull over.   He left the roadway and drove his van into a police cruiser, seriously injuring one officer while nearly injuring another.   This collision also caused extensive damage to the cruiser.   Consequently, no reasonable juror could find Appellant guilty of fleeing or evading the police without causing a substantial risk of injury or actual injury.   The police officers involved were clearly put at a substantial risk of injury or death because of Appellant's actions – indeed, one of them actually was seriously injured.   Thus, the trial court did not abuse its discretion in denying the requested instruction, and there was no error. Double

III. The Trial Court Properly Denied Appellant's Motion for a Mistrial.

Appellant next argues that he was entitled to a mistrial because the jury was improperly informed that he had been indicted and served with a felony warrant for possession of a controlled substance in Hardin County.   During direct examination by the Commonwealth, KSP Trooper Zach Jones testified that Appellant received treatment at the hospital for dehydration following the subject incident and was then released into his custody.   When asked what happened next, Trooper Jones testified as follows:

I transported him from there to the Daviess County Detention Center where we booked him in.   Sergeant Bell actually did the charges of assault first and everything.   I served an indictment warrant on him for possession of a controlled substance out of Hardin County, I believe ․ a felony warrant out of Hardin County.

Defense counsel immediately objected to this testimony, and the trial court sustained the objection.   The parties then approached the bench and defense counsel asked for an admonition.   The trial judge agreed that an admonition was necessary, and he subsequently admonished the jury as follows:  “Ladies and gentlemen of the jury, the comment that Trooper Jones made with respect to an indictment from another jurisdiction is to be disregarded and not considered in this case whatsoever.”   The Commonwealth then concluded its direct examination of Trooper Jones.

Before proceeding with cross-examination, defense counsel moved for a mistrial based on Trooper Jones's testimony regarding the warrant.   Counsel argued that the statement was not responsive to the Commonwealth's questioning and that it was highly prejudicial to Appellant.   In response, the Commonwealth argued that the admonition to the jury had cured any error.   The trial judge agreed that the comment was inappropriate but denied defense counsel's motion, explaining his reasoning as follows:

I think the comment taken alone is not sufficient to be prejudicial to the defendant in this case, and the reason is that there has already been testimony about his extensive methamphetamine use and it's not something which the jury is caught unaware.   I mean, they know he's used methamphetamine in the past –that is part of the evidence – and rather extensively, so I'm going to deny the motion for a mistrial.

Appellant again contends that this testimony unfairly prejudiced the jury against him to the degree that a mistrial was merited since it unfairly portrayed him as a “career criminal.”   We agree that it was clearly improper for Trooper Jones to offer the testimony in question.   However, given how the trial court resolved the issue, we do not believe that the court committed reversible error in denying a mistrial.

“A trial court's decision to grant or deny a mistrial will not be disturbed on appeal unless an abuse of discretion is shown.”  Shepherd v. Commonwealth, 251 S.W.3d 309, 317 (Ky.2008).   Before granting a mistrial, a trial court must determine that there is a manifest necessity for such a remedy.  Id. “In order to constitute manifest necessity, the alleged error must be so severe that it results in an incurable amount of prejudice and precludes the defendant from having a fair and impartial trial.”  Id.

Moreover, Kentucky courts have long accepted the proposition that “[a] jury is presumed to follow an admonition to disregard evidence and the admonition thus cures any error.”  Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky.2003), see also Parker v. Commonwealth, 291 S.W.3d 647, 658 (Ky.2009) (holding that the trial court's admonition was a sufficient curative measure given the relatively brief nature of the improper testimony in the context of a lengthy trial).   In this case, the trial judge admonished the jury to disregard the testimony in question upon the request of defense counsel.

Consequently, the presumption is that the jury followed this admonition and that any error was cured.   However, there are two circumstances in which the presumptive efficacy of an admonition falters:

(1) when there is an overwhelming probability that the jury will be unable to follow the court's admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant;  or (2) when the question was asked without a factual basis and was inflammatory or highly prejudicial.

Johnson, 105 S.W.3d at 441 (internal citation and quotations omitted).   The second circumstance is inapplicable here since there is no indication that the Commonwealth deliberately elicited the statement from Trooper Jones via an inappropriate question.

As to the first circumstance, we cannot say that an “overwhelming probability” exists that the jury could not follow the court's admonition.   As noted by the Commonwealth, the record reflects that the jury was highly attentive during this case;  indeed, the jury posed several pertinent written questions to witnesses of both parties throughout the trial.   Moreover, the admonition immediately followed the inappropriate testimony, increasing the likelihood of its efficacy.   We also do not believe that the statement in question was so devastating that it merited a new trial.   As indicated by the trial court, the jury was made fully aware of Appellant's methamphetamine use throughout trial.   Consequently, while it was inappropriate for Trooper Jones to advise the jury that Appellant had been indicted and served with a warrant for drug possession, after considering the evidence as a whole we cannot say as a matter of law that this isolated statement was so shocking or devastating to Appellant's case that it irrevocably and unduly prejudiced the jury against him.   See Phillips v. Commonwealth, 679 S.W.2d 235, 237–38 (Ky.1984).

Accordingly, we presume that the trial court's admonition to the jury, which came at the request of defense counsel, cured any error that might have occurred.   Therefore, the trial court did not abuse its discretion by denying Appellant's motion for a mistrial.

IV. Appellant Was Not Denied His Right to Present a Defense When the Trial Court Excluded Testimony Regarding Trooper McKee's Speed in Arriving at the Scene.

Appellant next contends that he was denied his right to present a defense because of the exclusion of testimony from Roman Kickirillo, an accident reconstruction expert, regarding the speed at which Trooper McKee would have had to have traveled in order to intercept Appellant at mile marker 64 of the Natcher Parkway.   We review a trial court's evidentiary rulings for an abuse of discretion.  Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

The right to present a defense is a fundamental right guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.  Crane v. Kentucky, 476 U.S. 683, 690–91, 106 S.Ct. 2142, 2146–47, 90 L.Ed.2d 636 (1986);  Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973);  Harris v. Commonwealth, 134 S.W.3d 603, 608 (Ky.2004);  Beaty v. Commonwealth, 125 S.W.3d 196, 206 (Ky.2003).  “The exclusion of evidence violates that constitutional right when it ‘significantly undermine[s] fundamental elements of the defendant's defense.’  “ Harris, 134 S.W.3d at 608, quoting United States v. Scheffer, 523 U.S. 303, 315, 118 S.Ct. 1261, 1267–68, 140 L.Ed.2d 413 (1998).   The right to offer testimony from witnesses is essentially the right to present a defense.  Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).   The “right to present a defense” is firmly ingrained in Kentucky jurisprudence.   Beaty, 125 S.W.3d at 206.

During opening arguments, defense counsel argued that the overzealous actions of the police officers contributed to Appellant's paranoia and the ensuing collision.   In support of this theory, defense counsel attempted to introduce testimony from defense witness Roman Kickirillo, an accident reconstruction expert, about how fast Trooper McKee would have had to have traveled in order to reach the scene from his home.   During cross-examination, Trooper McKee estimated that he reached mile marker 64 in approximately six minutes, but he could not recall how fast he was driving before he arrived.   Trooper McKee testified that the distance from his home to this mile marker was less than nine miles.   On avowal, Kickirillo testified that Trooper McKee would have had to have traveled at an average 115 miles per hour in order to reach the scene in that amount of time.

Defense counsel asserted that Kickirillo's testimony was relevant because it tended to show that Trooper McKee acted recklessly in arriving at the scene and that this contributed to the “chaotic situation” that caused Appellant to become “rattled and scared.”   In response, the Commonwealth argued that Appellant could not have known that the police were pursuing him until Trooper McKee pulled in behind him from the median.   Therefore, the Commonwealth argued, Trooper McKee's speed, manner of driving, and how long it took him to arrive at mile marker 64 had no relevance.   The trial court agreed with the Commonwealth and prohibited the testimony on the basis that it was irrelevant and speculative.

Appellant notes that earlier in the trial, the trial court allowed defense counsel to address the subject of Trooper McKee's speed in arriving at the scene, but none of the witnesses could testify as to the exact speed Trooper McKee would have had to have traveled.   Appellant argues that because the court refused to allow Kickirillo to testify that the calculated speed would be 115 miles per hour, his theory was essentially “cut off at the knees.”   However, we fail to see how this testimony was relevant.

When Trooper McKee arrived in the median, he waited for Appellant to pass, then pulled out and followed him with his lights and sirens activated.   Neither Appellant nor Trooper McKee exceeded the speed limit during the ensuing pursuit.   The fact that Trooper McKee may have driven at excessive speeds in reaching the median does not have a tendency to show that his manner or method of driving to the scene contributed to Appellant's actions in any way.   Appellant makes no argument, and nothing in the record suggests, that Appellant was aware of Trooper McKee's manner or method of driving prior to the point that Trooper McKee arrived in the median.

We further note that the jury had already been presented with evidence suggesting that Trooper McKee had exceeded the speed limit on his way to the scene;  for example, he could not recall whether he exceeded 100 miles per hour.   Consequently, even assuming that the trial court erred in excluding Kickirillo's testimony, we believe that any such error was harmless.   See Kentucky Rules of Criminal Procedure (RCr) 9.24.

V. Appellant Was Improperly Required to Pay a Fine and Court Costs.

Appellant lastly asserts that due to his indigent status, the trial court erred in imposing a $500.00 fine and $155.50 in court costs at sentencing.   We agree.   At the onset of this case, the trial court found Appellant to be indigent and appointed a public defender to represent him at trial.   Moreover, in its judgment and sentence, the trial court again found Appellant to be indigent.   Indeed, it waived any public defender's fee and the $1,000.00 mandatory fine set forth in KRS 534.030 for this very reason.   The trial court also granted Appellant the right to proceed in forma pauperis on appeal.

The law is clear that neither fines nor court costs may be levied upon defendants who are found to be indigent.   The recent decision of the Supreme Court of Kentucky in Travis v. Commonwealth, 327 S.W.3d 456 (Ky.2010), is dispositive of the arguments presented by the parties on this issue:

Subsection (4) of KRS 534.040 provides that “[f]ines required by this section shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31.”   Nor may court costs be levied upon defendants found to be indigent.  KRS 23A.205(2).   At the time of trial, [the Appellants] were receiving the services of a public defender, and were granted the right to appeal in forma pauperis.   They were clearly indigent.   Thus, the trial court clearly erred in imposing a fine and court costs upon the Appellants.   See Simpson v. Commonwealth, 889 S.W.2d 781, 784 (Ky.1994).

[Appellants] concede that this error is not preserved for appellate review.   “Nonetheless, since sentencing is jurisdictional it cannot be waived by failure to object.”  Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky.1985).  “Thus, sentencing issues may be raised for the first time on appeal and Appellant is proceeding properly before this Court.”  Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky.2007).   Fines and costs, being part of the punishment imposed by the court, are part of the sentence imposed in a criminal case.   Having the inherent jurisdiction to cure such sentencing errors, this Court vacates the fines and court costs.

Id. at 459.   Consequently, the trial court clearly erred in imposing a fine and court costs upon Appellant.   Thus, we reverse the portion of the trial court's judgment and sentence whereby Appellant was ordered to pay a $500.00 fine and $155.50 in court costs, and we remand for entry of an order consistent with this decision.

CONCLUSION

For the foregoing reasons, we affirm as to all aspects of the judgment of the Daviess Circuit Court with the exception of its imposition of a fine and court costs against Appellant.   As to that portion of the judgment, we reverse and remand for entry of an order consistent with this opinion.

ALL CONCUR.

LAMBERT, SENIOR JUDGE:

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