Armed Pedestrian Flight as “Substantial Risk”:
The Supreme Court of Kentucky Clarifies KRS 520.095 in Evans v. Commonwealth

1. Introduction

In Virgil Lee Evans, Jr. v. Commonwealth of Kentucky (Sup. Ct. Ky., 14 Aug 2025, No. 2024-SC-0241-MR), the Supreme Court of Kentucky affirmed a 25-year sentence imposed on Virgil Evans for first-degree burglary, first-degree fleeing and evading the police, and PFO I status. Two appellate issues framed the opinion:

• whether the trial court erred in denying a directed verdict on first-degree fleeing and evading (KRS 520.095); and
• whether Evans was entitled to a voluntary-intoxication jury instruction on first-degree burglary.

Although the opinion is formally “not to be published,” Kentucky Rule of Appellate Procedure 40(D) permits its citation where no published decision “adequately addresses the issue.” The Court’s analysis meaningfully expands what circumstances constitute a “substantial risk of serious physical injury or death” when an armed suspect flees on foot (or bicycle), thereby fashioning fresh guidance for trial courts despite the unpublished designation.

2. Summary of the Judgment

Applying the familiar Jackson v. Virginia / Benham sufficiency standard, the Court held:

1. Directed Verdict – Fleeing & Evading. Evidence that Evans (i) visibly possessed a handgun, (ii) disobeyed a lawful order to stop, (iii) forced Officer Shepard to draw his service weapon in a residential area, and (iv) endangered nearby bystanders sufficed for a jury to find that he “created a substantial risk of serious physical injury or death” under KRS 520.095(1)(b)(2) (pre-2024 version). The Court distinguished Bell v. Commonwealth, stressing that in Bell the officer never drew his weapon.
2. Voluntary-Intoxication Instruction. Evans’s own testimony evidenced memory, consciousness of purpose, and reasoned explanations for his actions; therefore he failed to meet the burden (as an affirmative defense) of showing intoxication so extreme that it negated the specific intent required for burglary. The trial court’s refusal to instruct was not an abuse of discretion.

Accordingly, the Supreme Court affirmed in full.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• Jackson v. Virginia, 443 U.S. 307 (1979) – Origin of the constitutional sufficiency-of-the-evidence test; adopted by Kentucky in Sawhill and Benham.
• Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983); Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) – Kentucky articulation of Jackson, framing when a directed verdict is mandatory.
• Culver v. Commonwealth, 590 S.W.3d 810 (Ky. 2019) – Recent application of the “substantial risk” element in a vehicle chase; analogised to pedestrian context.
• Bell v. Commonwealth, 122 S.W.3d 490 (Ky. 2003) – Key comparator; Court distinguishes Bell on facts (no drawn weapon in Bell).
• Commonwealth v. Clemons, 734 S.W.2d 459 (Ky. 1987) – Discusses “explosive environment” created when firearms confront police; cited to underscore potential volatility.
• Commonwealth v. Tate, 893 S.W.2d 368 (Ky. 1995); Mishler v. Commonwealth, 556 S.W.2d 676 (Ky. 1977); Luna v. Commonwealth, 460 S.W.3d 851 (Ky. 2015); Brafman v. Commonwealth, 612 S.W.3d 850 (Ky. 2020); Berry v. Commonwealth, 680 S.W.3d 827 (Ky. 2023) – Ensemble of cases allocating the burden and defining evidentiary thresholds for voluntary-intoxication instructions.

3.2 Core Legal Reasoning

1. Statutory Construction of KRS 520.095 (Pre-2024).
   • The Court read “creates a substantial risk” broadly, focusing not on the defendant’s use of the gun but on the cascading danger produced once police must respond to an armed flight.
   • Because Officer Shepard drew his weapon in a populated setting, the “risk” element was met despite absence of shots fired or explicit threats.
2. Directed-Verdict Framework. Under Benham, the trial court must deny a motion if any rational jury could find guilt. The Supreme Court repeated that the reviewing court must not re-weigh evidence but must credit the Commonwealth’s proof and all reasonable inferences.
3. Distinguishing Bell. Bell involved a tossed gun, no drawn police firearm, and therefore insufficient risk. Here, the drawn weapon plus bystanders created a tangible hazard.
4. Voluntary Intoxication. Because it is an affirmative defense (KRS 501.080; Luna), the burden is on the defendant. Mere methamphetamine use—without blackout, disorientation, or inability to recollect—was deemed inadequate. The Court emphasized the internal inconsistency of knowing, purposeful behavior (seeking help, selecting the gun) while claiming incapacity.

3.3 Anticipated Impact

Even as unpublished, the decision carries persuasive value because:

• It clarifies that armed pedestrian flight—even on a bicycle—can constitute the “substantial risk” element, broadening the statute’s practical reach.
• It signals to trial courts that the presence of bystanders and a drawn police firearm, without shots fired, suffices for jury submission.
• The opinion arrives after the 2024 amendment to KRS 520.095 which removed “substantial risk” and now only requires actual “cause” of injury. Thus, for pre-amendment conduct or for interpreting similar language in other statutes, Evans provides a final authoritative gloss.
• On voluntary intoxication, the Court reaffirms heightened evidentiary demands, cautioning defense counsel that generic drug-use testimony will rarely justify the instruction in specific-intent crimes.

4. Complex Concepts Simplified

• Directed Verdict – A mid-trial request asking the judge to acquit because no reasonable jury could convict even if all prosecution evidence is believed. Denied here.
• Substantial Risk – A likelihood of serious harm, not merely a remote possibility; can arise from the reaction the defendant’s conduct provokes (e.g., officer drawing a gun).
• First-Degree Fleeing & Evading (KRS 520.095) – Felony offense for ignoring a lawful stop order under circumstances posing serious danger; includes separate subsections for motorists and pedestrians.
• Voluntary Intoxication (Affirmative Defense) – Defendant must prove intoxication so profound that it prevents forming the mental state (e.g., intent) required by the charged offense.
• Persistent Felony Offender (PFO I) – Kentucky’s habitual-offender enhancement; increases penalties when defendant has specified prior felony convictions.

5. Conclusion

Evans v. Commonwealth spotlights the evolving contours of KRS 520.095. The Court’s reasoning crystallizes four practical lessons:

1. An officer’s need to draw a weapon in response to an armed suspect’s non-compliance can, by itself, supply the “substantial risk” element for first-degree fleeing and evading.
2. Distinguishing prior authority (Bell), the Court elevates objective danger over subjective fear or actual injury.
3. Voluntary intoxication remains a narrow defense; defendants must show incapacitating impairment, not mere substance use.
4. Trial judges retain broad discretion in denying voluntary-intoxication instructions where the record evidences purposeful conduct.

Though “not to be published,” the opinion contributes persuasive precedent in Kentucky’s criminal jurisprudence, particularly for cases arising during the legislative transition of KRS 520.095. Attorneys prosecuting or defending armed-flight scenarios—and trial judges considering jury instructions—should therefore study Evans for its fact-specific, yet broadly applicable, guidance.