RENDERED: FEBRUARY 26, 2021; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky
Court of Appeals

NO. 2019

- CA

- 0164

- MR

LAMONTE AKIO WILLIAMS APPELLANT

v. APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE ERNESTO M. SCORSONE, JUDGE

ACTION NO

. 16

- CR

- 01162

- 002

COMMONWEALTH OF KENTUCKY APPELLEE

AND NO. 2019

- CA

- 0227

- MR

D ’ MARKEO CHAVEZ TAYLOR APPELLANT

v. APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE ERNESTO M. SCORSONE, JUDGE

ACTION NO. 16

- CR

- 01162

- 003

COMMONWEALTH OF KENTUCKY APPELLEE- 2

- OPINION AFFIRMING

**   **  **

BEFORE: GOODWINE, KRAMER, AND MAZE, JU DGES.

KRAMER, JUDGE: Lamonte Akio Williams and D ’ Markeo Chavez Taylor

appeal their convictions for wanton endangerment, first degree, in the Fayette

Circuit Court. This Court held this matter in abeyance pending resolution of two

companion cases in the Kentucky Supreme Court

, 2019

- SC

- 006 6

- MR and 2019

-

SC

- 0138

- TG

. 1 Those cases are now final

. After careful review of this matter and

the decision by the Kentucky Supreme Court in the companion cases , we affirm.

On the night of Octobe r 16, 2016, at approximately 3:50 a.m., fifteen

year

- old Trinity Gay was tragically shot through the chest while socializing with

friends in the parking lot of the Cook Out restaurant in Lexington , Kentucky . She

died from her wound shortly thereafter.

Taylor and his friend, Raekwon Berry, were at the Cook Out earlier in

the evening of October 16, 2016 . Taylor called his father, Chazerae Taylor 2 and

told him that he and Berry had been robbed of a gun and cash while there

.

1 See Taylor v. Commonwealth

, __S.W.3d__, Nos. 2019

- SC

- 0066

- MR, 2019

- SC

- 0138

- TG, 2020 WL 6390211 (Ky. Oct. 29, 2020) ( those cases were finalized on February 18, 2021, and designated to be published).

2 Both counsel and witnesses referred to Chazerae Taylor as “Chaz” throughout the trial. We use Chazerae to be in conformity with the name used in the companion Supreme Court cases.- 3

-

Chazerae agreed to return to the Cook Out with Taylor and Berry to look for the

individual who allegedly robbed them. Taylor, who was driving, picked up

Chazerae and headed back to the Cook Out. On the way, they picked up Williams

and Tovon McFarland, who were told of the robbery on the way to the restaurant

. It is undisputed that Taylor, Chazerae , and Williams had guns in their possession

when they arrived

.

T he parking lot of the Cook Out was crowded that night, which was

described as n ot being unusual because the parking lot was known as a popular

hang

- out area . T he mood there that evening has been described as “tense.”

Williams eventually told police that when they arrived at the Cook Out, people in

the parking lot were “mean mugging” him

, i.e.
, reaching into their pockets as if to

signal they were grabbing a gun. Video surveillance shows that upon Chazerae ’ s
exiting the vehicle, he fir ed shots into the air while standing directly outside of the

Cook Out. At this point, the record sh ows that shots were then fired from multiple

people both in and around the Cook Out parking lot

. 3 Williams, who was standing

next to Chazerae in the surveillance video, fired his gun into the air at least twice.

3 Three cartridge cases collected from the scene were fired from Taylor ’ s gun. Numerous spent cartridge cas ings were recovered from the scene that were fired from guns that were never identified. Multiple witnesses testified seeing individual s firing guns and hearing gunshots, but no witness could affirmatively identify any o f the shooters. In their subsequent interviews with law enforcement, Williams, Taylor, Chaz erae , and D’Vonta Middlebrooks admitted to firing guns in the Cook Out parking lot that evening. Law enforcement recovered only the guns used by Taylor and William s.- 4

-

Taylor, who was at the front side of the C ook Out, also fired his gun into the air.

Taylor also admitted to firing shots from his vehicle as t he group was leaving. 4

D ’ Vonta Middlebrooks , who was also in the parking lot that night, fired shots from

a mulched area between the Cook Out and the neig hboring Waffle House.

Tragically, in the ensuing and needless chaos, a bullet from a .45 caliber gun struck

and killed Trinity Gay. Although the shooter has never been identified, four

individuals were charged in response to events that night: Williams, Taylor,

Middlebrooks, and Chazerae

.

In a joint trial, a ju ry convicted Williams on five counts of wanton

endangerment, first degree, and recommended a sentence of one year on each

count, to run consecutively, for a total of one year ’s incarceration. The circuit

court sentenced Williams accordingly but probated h is sentence for five years. The

same jury convicted Taylor of one count of wanton endangerment, first degree, and

recommended a sentence of fifteen months ’ incarceration. 5 The circuit court

4 When police arrived at Taylor ’ s house to question him, his blue Ford Fusion was covered in bullet holes and had a smashed rear window.

5 We note that , although Taylor admitted to also firing the gun from his vehicle when fleeing the Cook Out, he was charged with only one count of wanton endangerment, first degree, and the jury instructions stated, in relevant part, “[t]hat in this county on or about October 16, 2016, and before the finding of the i ndictment herein, [Taylor] fired multiple shots from a handgun in the parking lot of the Cook Out restaurant[.]” As pointed out in Taylor ’ s reply brief to this Court, in closing arguments, the Commonwealth described in detail only the shots fired while Taylor was standing in the Cook Out parking lot.- 5

-

sentenced Taylor according to the jury ’ s recommendation but prob ated his

sentence for five years. These appeals followed. Middlebrooks and Chazerae

were also convicted by the jury. 6

Both Williams and Taylor claim that the circuit court erred by failing

to grant their separate motions for a directed verdict on the c harges of wanton

endangerment, first degree. They argue that they fired their guns into the air ;

therefore

, the circumstances did not manifest “extreme indifference to the value of

human life” as mandated for a conviction of wanton endangerment, first deg ree,

under KRS 7 508.0 60

. Williams also claims that the jury should have been

instructed on a local city ordinance as a lesser included offense of wanton

endangerment, first degree. We disagree with each argument.

Regarding motions for a directed verdict, the Kentucky Supreme

Court has ruled

[w]hen deciding a motion for a 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 reasonabl e juror to believe beyond a reasonable doubt that the defendant is

6 Middlebrooks was convicted of one count of wanton endangerment, first degree, as well as being a persistent felony offender, first degree. He was sentenced to fifteen years ’ incarceration. Middlebrooks ’ appeal was dismissed by this Court for failure to file a timely notice of appeal. See No. 2019

- CA

- 0202

- MR

. Chazerae was convicted of wanton murder and four counts of wanton endangerment, first degree. He received a sentence of twenty years ’ incarceration , which he appealed. T he Kentucky Supreme Court upheld his conviction in Taylor v. Commonwealth

,

__ S.W.3d

__ , 2020 WL 6390211

.

7 Kentucky Revised Statute.- 6

- guilty, a directed verdict should not be given.” Commonwealth v. Benham , 816 S.W.2d 186, 187 (Ky. 1991). Questions about the credibility and weight to be given to the evidence are reserved to the jury. Id. “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. (citing Commonwealth v. Sawhill , 660 S.W.2d 3 (Ky. 1983)).

Lamb v. Commonwealth , 510 S.W.3d 316, 325 (Ky. 2017)

.

“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.” Sawhill , 660 S.W.2d at 5. In other words, as long as the

Commonwealth prod uces more than a scintilla of evidence against the defendant , a

motion for directed verdict should be denied.

A person is guilty of wanton endangerment “when

, under

circumstances manifesting extreme indifference to the value of human life, he

wa ntonly engages in conduct which creates a substantial danger of death or serious

physical injury to another person.” KRS 508.060. “Wantonly” is defined in KRS

501.020(3), in relevant part, as

[a] person acts wantonly with respect to a result or to a circ umstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.- 7

-

“Thus, wantonness is the awareness of and conscious disregard of a risk that a

reasonable person in the same situation would not have disregarded.” Robertson v.

Commonwealth , 82 S.W.3d 832, 835 (Ky. 2002) (emphasis added).

Both Williams and Taylor argue that the circuit court should have

granted their motions for a directed verdict because the evidence produced at trial

showed only that they fired into the air, not into the crowd of people

, in the Cook

Out parking lot. According to them, the circumstances did not manifest extreme

indifference to the value of human life. In upholding Chazerae ’ s conviction, the

Kentucky Supreme Court in Taylor looked to the elements of causation provided in

KRS 501.060(3)

- (4) which state, in relevant part

(3) When wantonly or recklessly causing a particular result is an element of a n offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of recklessness, of which he should be aware unless:

(a) The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused;

or

(b) The actual result involves the same kind of injury or harm as the prob able result and occurs in a manner which the actor knows or should know is rendered- 8

- substantially more probable by his conduct.

(4) The question of whether an actor knew or should have known the result he caused was rendered substantially more probable by his conduct is an issue of fact.

See Taylor

, __S.W.3d at __, 2020 WL 6390211 at *3.

Further, the Kentucky Supreme Court has looked to the 1974

Commentary to KRS 501.060, noting

Once an act is found to be a cause in fact of a result and a substantial factor in bringing about that result, it is recognized as the proximate cause unless another cause, independent of the first, intervenes between the first and the result. And even th en the first cause is treated as the proximate cause if the harm or injury resulting from the second is deemed to have been reasonably foreseeable by the first actor.

Robertson v. Commonwealth , 82 S.W.3d 832, 836 (Ky. 2002) ; Taylor

, __S.W.3d at

__, 2020 WL 6390211 at *4.

In other words, the fact finder must look to whether Williams and

Taylor knew or should have known that firing their guns in the parking lot of the

Cook Out made it substantially more probable that others would return gunfire,

thus putting others in the parking lot at serious physical injury and/ or death. See

id.- 9

- Because Chazerae made the same legal arguments to the Kentucky

Supreme Court that Williams and Taylor make before us, we look to our highest

C ourt ’ s analysis to decide the issue:

Case law is clear that a wide variety of actions under differing circumstances may constitute aggravated wanton conduct. In addressing the sufficiency of the evidence for wanton endangerment, this Court has held that “[f]iring a weapon in the immediate vicinity of others is the prototype of first degree wanton endangerment.” Swan v. Commonwealth, 384 S.W.3d 77, 102 (Ky. 2012) (quoting Robert G. Lawson & William H. Fortune, Kentucky Criminal Law § 9

- 4(b)(2) at 388, and n.142 (1998)) (cit ations omitted). In Swan

, the defendants, armed with handguns, invaded and robbed a home, firing into the ceiling, as well as toward specific victims in the living room located in the front of the home. 384 S.W.3d at 84

- 86. This Court concluded that a directed verdict should have been granted on first

degree wanton endangerment regarding the person who was hiding in the back bedroom of the house, as no proof was presented that the defendant shot in her direction. Id.

Contr ast the holding in Swan to Hall

, [ 8 ] wherein we found sufficient evidence to uphold first

- degree wanton endangerment convictions for children who were somewhere inside the house that the defendant shot through from across the street using a scoped .30

- 06 de er rifle, killing the children ’ s parents. 468 S.W.3d at 829. We analogized those facts to Paulley v. Commonwealth

, 323 S.W.3d 715 (Ky. 2010), in which the Court upheld the trial court ’ s denial of a directed verdict on nine counts of wanton endangerment, o ne for each person present in the home at the time the defendant fired three

8 Hall v. Commonwealth , 468 S.W.3d 814 (Ky. 2015)

.- 10

- shots from a shotgun into the closed doorway of the home. Id. at 723, 726. In affirming the denial of the directed verdict, the Paulley court did not consider the precise locati on of each of the victims inside the home, instead emphasizing that with respect to wanton endangerment, a single gunshot can endanger multiple people.

The determination of whether the defendant ’ s conduct is “wanton” is one for the jury to make, considering the circumstances of the case. See KRS 507.020 Kentucky Crime Commission/LRC Commentary (1974). “Typical of conduct contemplated for inclusion in ‘ wanton ’ murder is: shooting into a crowd, a n occupied building or an occupied automobile; placing a time bomb in a public place; or derailing a speeding locomotive.” Id.

A reasonable jury could have concluded that [Williams and Taylor] wantonly fired multiple shots into the air, amidst a crowd o f people during the early morning hours, which set into motion the foreseeable response gunfire that resulted in Gay ’ s death and created a substantial danger of death or serious physical injury to the four people in her immediate vicinity. See e.g., Phill ips v. Commonwealth , 17 S.W.3d 870 (Ky. 2000) (upholding defendant ’ s wanton murder conviction since a jury could “reasonably conclude that a person who deemed it necessary to arm himself before going to that neighborhood [to purchase crack cocaine from a s treet dealer] would have been aware of the risk that others in the neighborhood .

. . would also be armed, and if fired upon, would return fire[ ]”). The four people in Gay ’ s vicinity, for whom [Williams] was convicted of first

degree wanton endangerment, all testified at trial as to their location when the bullets were fired and their- 11

- nearness to Gay when she was shot. [ 9 ] Their testimony, and all testimony presented, was for the jury to assess and weigh. See Morgan v. Commonwealth , 421 S.W.3d 388, 393 (Ky. 2014) (“[W]hen the evidence is contradictory, the credibility of witnesses and the weight to be given to sworn testimony are for the jury to decide[]” (citation omitted)).

Taylor

, __S.W.3d at __

, 2020 WL 6390211, at *4

- 5 (footnotes omitted).

Although Chazerae fired the initial shots into the air that night, both

Williams and Taylor arrived a t the Cook Out armed and looking for someone
whom they believed to be armed b ased on Taylor ’ s account of the robbery earlier

in the evening

. Although Williams later told police that he went along only to get

something to eat, it was the jury ’ s province to believe or disbelieve that evidence.

The parking lot was crowded, as it was known to be . While Will iams and Taylor

shot into the air

, they “ knew the crowd would panic and disperse, and [they]

counted on it. Forensic evidence showed that multiple people returned fire, a

testament to the likelihood that a dangerous reaction to [their] provocation might

o ccur. When bullets start flying in a crowd of people, no one should be surprised

when someone gets shot. ” Id. at *5.

The evidence wa s sufficient to induce a reasonable juror to believe

beyond a reasonable doubt that Williams and Taylor were guilty

. Accordingly, t he

9 Williams was convicted of five counts of wanton endangerment, first degree, related to Trinity Gay and the four individuals in her vicinity when she was shot. Taylor was convicted of one count of wanton endangerment unrelated to any specific individual i n the Cook Out parking lot.- 12

-

circuit court did not err in denying Williams ’ and Taylor ’ s motions for a directed

verdict.

We are also unpersuaded that Williams was entitled to a jury

instruction based on violation of a local city ordinance. The ju ry was instructed on

first

- degree wanton endangerment and second

- degree wanton endangerment as a

lesser included offense. Williams has failed to demonstrate that violation of the

local ordinance is a lesser included offense of wanton endangerment, first d egree ,

or that such an instruction by the circuit court would have been proper under any

circumstance. “ The fact that evidence at trial could support a guilty verdict on an

uncharged offense that is less serious in nature or less difficult to prove than a

charged offense does not establish that the former is a lesser offense which is

necessarily included in the latter. ” Hart v. Commonwealth , 768 S.W.2d 552, 553

(Ky. App. 1989) . Therefore, we discern no error.

Accordingly, the judgment of the Fayette Circuit Court is affirmed.

ALL CONCUR

.- 13

-

BRIEF S FOR APPELLANT LAMONTE AKIO WILLIAMS :

Abe Mashni Lexington, Kentucky

BRIEF S FOR APPELLANT D ’ MARKEO CHAVEZ TAYLOR:

Emily Holt Rhorer Frankfort, Kentucky BRIEF FOR APPELLEE:

Andy Beshear Attorney General of Kentucky

Kristin L. Conder Assistant Attorney General Frankfort, Kentucky

BRIEF FOR APPELLEE:

Andy Beshear Attorney General of Kentucky

James C. Shackelford Assistant Attorney General Frankfort, Kentucky