IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

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RENDERED: MARCH 25, 2021

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0141-MR

JIMMY R. BALDWIN APPELLANT

ON APPEAL FROM HARLAN CIRCUIT COURT

V. HONORABLE KENT HENDRICKSON, JUDGE 

NO. 18-CR-00169

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

On a motion for directed verdict, a trial court must view the evidence as a 

whole in favor of the Commonwealth. If the Commonwealth produces more 

than a mere scintilla of evidence, then the defendant’s motion should be 

denied. In this case, the primary issue we are to determine is whether the 

Harlan Circuit Court properly denied Jimmy Baldwin’s motion for a directed 

verdict on three counts of wanton endangerment first degree and one count of 

fleeing or evading police first degree. Upon a careful review of the record and 

the testimony, we hold that the trial court did not err and therefore affirm its 

judgment of conviction whereby it sentenced Baldwin to 20 years.

I. Facts and Procedural Background.

In the early morning of June 28, 2017, Officer Jonathan Franklin, of the 

Cumberland Police Department, was parked on the side of U.S. Highway 119 at 
2

the Plaza Motel, just south of Cumberland. Fifteen minutes previously, he had 

bought coffee at the Speedway gas station in Cumberland, where he noticed a 

black Chevrolet Cobalt with three occupants pull in to the Speedway where 

they purchased food, drinks and cigarettes. While sitting on the side of the 

highway, facing northbound, he observed the black Cobalt rounding a 

southbound curve at such a high rate of speed that it veered into the 

northbound lane before correcting back into its proper lane. Officer Franklin 

estimated it was travelling at 90 miles per miles per hour (m.p.h.). The speed 

limit on that stretch of highway is 55 m.p.h. Officer Franklin immediately 

turned onto the southbound lane in pursuit and activated his emergency 

equipment, siren and blue lights. He testified at trial that he reached a speed 

of 120 m.p.h. The pursuit ended up being very short as the Cobalt pulled over 

after about a mile, where the driver exited the vehicle and ran to railroad tracks 

parallel to the highway to make an escape. After quickly questioning the two 

occupants remaining in the Cobalt, Devin Foster and Jordan Massingale, who 

identified Jimmy Baldwin as the driver, Officer Franklin briefly chased 

Baldwin, observing him in a culvert beneath the railroad, before losing him.

At trial, Foster testified that he was in the Cobalt’s front passenger seat 

as it left Cumberland and that Baldwin was driving.1 He stated that at one 

point he looked at the speedometer and Baldwin was driving 130 m.p.h. Foster 

further testified he was uncertain why Baldwin was driving so fast, but that he, 

 

1 Foster admitted to having consumed two beers, but did not implicate Baldwin 

in the consumption of alcohol. 
3

Foster, was scared since he had had bad experiences with car wrecks and 

friends had been killed.

Following Foster’s testimony, the Commonwealth closed its proof and 

rested its case. Baldwin did not testify. Baldwin moved for a directed verdict, 

which the trial court denied. Baldwin also tendered jury instructions including 

lesser offenses of wanton endangerment second degree and fleeing or evading 

police second degree. The trial court did not instruct on the lesser-included 

offenses. The jury convicted Baldwin of three counts of wanton endangerment 

first degree, one each as to Officer Franklin, Foster and Massingale, and one 

count of fleeing or evading police in the first degree. The jury recommended 

one-year sentences on each count, enhanced to twenty years by virtue of 

persistent felony offender in the first degree. The trial court imposed the 

twenty-year sentence recommended by the jury. Baldwin appeals to this court 

as a matter of right. Ky. Const. § 110(2)(b).

II. Standard of Review.

In this appeal, Baldwin claims two errors. First, the trial court failed to 

grant his motion for directed verdict. Our standard of review on such an issue 

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.” Ray v. Commonwealth, 611 S.W.3d 250, 266 (Ky. 2020) (quoting 

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991)). Second, the trial 

court erred in failing to instruct the jury as to wanton endangerment second 

degree and fleeing or evading police second degree. The standard of review as 
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to the failure to give a requested instruction, whether analyzed under a de novo 

or an abuse of discretion standard, is merely “whether the evidence would 

permit a reasonable juror to make the finding the instruction authorizes.” 

Allen v. Commonwealth, 338 S.W.3d 252, 255 n.1 (Ky. 2011).

III. Analysis.

A. Directed Verdict.

Baldwin’s first claim is that the trial court erred in failing to direct a 

verdict of acquittal on these charges. In Culver v. Commonwealth, we noted, 

On the motion for a directed verdict, the single controlling question 

for the trial court is whether the Commonwealth has sustained the 

burden of proof by more than a scintilla of evidence, with such 

evidence being of probative value and of the quality to induce 

conviction in the minds of reasonable men. James v. England, 349 

S.W.2d 359, 361 (Ky. 1961) (citation omitted). When the evidence 

is insufficient to induce reasonable jurors to believe beyond a 

reasonable doubt that a defendant is guilty, a verdict may be 

directed. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 

1991). When assessing the evidence, the trial court must consider 

the Commonwealth’s evidence as a whole, assume the evidence is 

true, and draw all reasonable inferences from the evidence in favor 

of the Commonwealth. Id. The trial court may not consider 

questions of weight and credibility, those being the province of the 

jury. Id.

590 S.W.3d 810, 812–13 (Ky. 2019).

Proof of wanton endangerment in the first degree required a showing that

“under circumstances manifesting extreme indifference to the value of human 

life, [Baldwin] wantonly engage[d] in conduct which created a substantial 

danger of death or serious physical injury to another person.” KRS2

 

2 Kentucky Revised Statutes.
5

508.060(1). Similarly, proof of fleeing or evading police in the first degree

required that Baldwin operated “a motor vehicle with intent to elude or flee, . . .

knowingly or wantonly disobey[ed] a direction to stop his . . . motor vehicle, 

given by a person recognized to be a police officer, and . . . [b]y fleeing or 

eluding, [Baldwin] . . . cause[d], or create[d] substantial risk, of serious 

physical injury or death to any person or property[.]” KRS 520.095(1)(a)4.

With respect to the results and circumstances described by these 

criminal offenses, “wantonly” is defined as “aware[ness] of and conscious[]

disregard [of] a substantial and unjustifiable risk that the result will occur or 

that the circumstance exists.” KRS 501.020(3). As to the risk, it “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.” Id. “Serious physical injury” is “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(15).

In Culver, we extensively discussed multiple cases from both this Court 

and the Court of Appeals analyzing wanton endangerment and fleeing or 

evading the police. 590 S.W.3d at 814-17. We concluded that “whether the 

defendant’s act of fleeing police created a ‘substantial risk’ of death or serious 

physical injury depends on the proof and reasonable inferences that can be 

drawn from the evidence, with each case presenting its own unique 
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circumstances.” Id. at 817 (citing Bell v. Commonwealth, 122 S.W.3d 490, 497

(Ky. 2003)).

In this case, the proof of wanton endangerment first degree was satisfied 

by Officer Franklin’s observation that Baldwin negotiated a curve on U.S. 

Highway 119 at an estimated 90 m.p.h. and veered into the oncoming lane to 

negotiate the curve. Then, as Officer Franklin pursued, Baldwin sped up to 

120 m.p.h. Foster corroborated this testimony that Baldwin was driving at 130 

m.p.h. before eventually pulling over and exiting the Cobalt. Both Officer 

Franklin and Foster testified as to being fearful of substantial injury or death 

at that speed. Under Kentucky’s directed verdict standard and in order for a 

jury to consider a criminal charge, more than a scintilla of evidence must be 

adduced from which a reasonable juror could conclude a defendant is guilty. 

Culver, 590 S.W.3d at 812-13. That standard is more than satisfied in this 

case. We hardly need authority to recognize that excessive speed reduces 

driver reaction time, increases the potential for a driver losing control of his or 

her vehicle, reduces the effectiveness of protective equipment, increases 

stopping distance after the driver perceives danger, and increases crash 

severity leading to more severe injuries.3 In fact, in Culver, we affirmed the 

convictions of wanton endangerment in the first degree and fleeing or evading 

police in the first degree for Culver’s actions as they related to the pursuing 

 

3 See Risky Driving/Speeding, U.S. Dep’t of Transp., Nat’l Highway Traffic 

Safety Admin. https://www.nhtsa.gov/risky-driving/speeding (accessed Feb. 16, 

2021).
7

officers, and Culver, although speeding, was going much slower than Baldwin. 

On two miles of U.S. Highway 150, Culver’s actions resulted in one of the 

officers pursuing at 80 m.p.h. We acknowledge, as Baldwin argues, that 

Officer Franklin’s pursuit of Baldwin occurred over a much shorter time and 

distance, but importantly, the speed was much faster. Here, Officer Franklin 

pursued at 120 m.p.h. where the posted speed limit was 55 m.p.h. And, 

according to Foster, Baldwin reached 130 m.p.h. at one point. Accordingly, the 

trial court did not err in denying Baldwin’s motion for a directed verdict.

B. Jury Instructions.

Baldwin’s second argument is that the trial court erred in failing to give 

instructions on the lesser-included offenses of wanton endangerment in the 

second degree and fleeing or evading police in the second degree.

The trial court ruled that instructions on lesser-included offenses, as

misdemeanors, were improper as time barred because their prosecution was

not brought within the one year preceding the indictment. The offenses 

occurred in June 2018, and Baldwin was not indicted until October 2019. No 

authority was advanced to support this holding,

4 and the Commonwealth does 

not so argue in this appeal. Instead the Commonwealth argues that Baldwin 

 

4 The trial court’s initial ruling appears contrary to this Court’s holding in 

Commonwealth v. Oliver, 253 S.W.3d 520, 525–26 (Ky. 2008) (stating that a criminal 

defendant’s request for “a lesser-included-offense instruction on an expired 

misdemeanor, . . . should [be] give[n] . . ., provided, of course, that the evidence 

supports the instruction. Absent a contrary indication in the record, the defendant’s 

request for such an instruction will operate as a waiver of his right to a statute of 

limitations defense[]”). The trial court acknowledged its error in deciding Baldwin’s 

motion for a new trial. Despite this acknowledgement, the trial court denied the 

motion on the basis that “no reasonable juror could acquit on the principal charges.”
8

either invited or waived the error by not objecting to the trial court’s final 

instructions. The Commonwealth’s argument is unpersuasive. Under RCr5

9.54(2), error with respect to the instructions is preserved “by an offered 

instruction[.]” In this case, Baldwin preserved his objection. We therefore 

address the merits of his argument.

Our case law recognizes that “a defendant has a right to have every issue 

of fact raised by the evidence and material to the defense submitted to the jury 

on proper instructions.” Allen, 338 S.W.3d at 255. This right includes 

entitlement to “an instruction on any lawful defense which he has[,]” Hudson v. 

Commonwealth, 202 S.W.3d 17, 20 (Ky. 2006), including instructions on lesser 

included offenses. In Hudson we stated that “[a]lthough a lesser included 

offense is not a defense within the technical meaning of those terms as used in 

the penal code, it is, in fact and principle, a defense against the higher charge.” 

Id. (citation and internal quotation marks omitted). No instruction is 

warranted, of course, unless supported by the evidence, and thus “[a]n 

instruction on a lesser included offense is appropriate if, and only if, on the 

given evidence a reasonable juror could entertain a reasonable doubt of the 

defendant’s guilt on the greater charge, but believe beyond a reasonable doubt 

that the defendant is guilty of the lesser offense.” Osborne v. Commonwealth, 

43 S.W.3d 234, 244 (Ky. 2001). In Allen, we held that “[a]n appellate court 

likewise applies this ‘reasonable juror’ standard to a claim that the trial court 

 

5 Kentucky Rules of Criminal Procedure.
9

erred by refusing to give a lesser included offense instruction.” 338 S.W.3d at 

255. Thus, “[c]onsidering the evidence favorably to the proponent of the 

instruction, we ask, as just noted, whether a reasonable juror could acquit of 

the greater charge but convict of the lesser.” Id. (citing Thomas v. 

Commonwealth, 170 S.W.3d 343 (Ky. 2005); Osborne, supra; Commonwealth v. 

Wolford, 4 S.W.3d 534 (Ky. 1999)).

As noted above, the elements of wanton endangerment in the first degree 

require extreme indifference to the value of human life, wanton conduct which 

creates a substantial danger of death or serious physical injury to another 

person. KRS 508.060(1). By contrast, wanton endangerment in the second 

degree, omits the element of “extreme indifference to the value of human life” 

and the wanton conduct only “creates a substantial danger of physical injury to 

another person.” KRS 508.070(1). As to the charge of fleeing or evading, first 

degree, includes the element 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. By contrast, fleeing or evading 

second degree omits this element. KRS 520.100.6

The question, therefore, is whether a reasonable juror could acquit 

Baldwin of the first-degree offenses and find him guilty of the lesser offenses. 

In Lawson v. Commonwealth, 85 S.W.3d 571 (Ky. 2002), overruled on other 

 

6 Both degrees of fleeing or evading police include the elements of “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[.]” KRS 520.095(1)(a), 520.100(1)(b).
10

grounds by Hall v Commonwealth, 551 S.W.3d 7 (Ky. 2018), we recognized, 

frankly, that in the vast majority of cases, the question of whether the actor’s 

conduct “manifested extreme indifference to human life” or “create[d] a 

substantial danger of death or serious physical injury” “is subject to reasonable 

disagreement, and, therefore, the misdemeanor offense will typically be a 

necessary lesser-included offense[.]” 85 S.W.3d at 576. In that case, the 

evidence was that Lawson was speeding, ran stop lights, violated lane 

discipline, and when he got on Interstate I-75 drove the vehicle at speeds 

between 100 and 125 m.p.h. Id. Eventually, Lawson made a U-turn in the 

grass median of the interstate, attempted to evade a police roadblock, hit the 

guard rail, lost control of the vehicle, went airborne and ended up in the 

median. Id. This court rejected the claim that Lawson was entitled to a 

misdemeanor instruction. Id.

In this case, Baldwin did not attempt the extensive evasive action as 

Lawson. However, Baldwin was going faster than Lawson, travelling on a nonlimited access highway, and when he was apparently going slower, 90 m.p.h.,

as estimated by Officer Franklin, he still exhibited erratic driving in using the 

oncoming lane to negotiate a curve in the road.7 We conclude that the trial 

 

7 Baldwin argues that his erratic driving negotiating the curve in Highway 119, 

prior to Officer Franklin’s engaging his emergency equipment, should not be 

considered in our analysis. While we might agree that it plays no role in our analysis 

of the offenses involving Officer Franklin, Foster and Massingale were in the Cobalt 

when Officer Franklin first observed it rounding the curve.
11

court properly denied Baldwin’s request for instructions on the lesser-included 

offenses.

IV. Conclusion.

For the foregoing reasons, we affirm the Harlan Circuit Court’s judgment.

 All sitting. Minton, C.J.; Hughes, Keller, Lambert, Nickell and VanMeter, 

JJ., concur. Conley, J., concurs in result only.

COUNSEL FOR APPELLANT:

Jennifer Leigh Wade

Erin Hoffman Yang

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Jenny Lynn Sanders

Assistant Attorney General