Introduction
Mark West stole Montell Hall’s running Ford Fusion from an Ohio gas station. Hall, Ke’Mani McKinnie, and a neighbor tracked the vehicle to a Kroger gas station in Fort Mitchell, Kentucky, where they boxed it in. When Hall and McKinnie approached, West reversed into the vehicle behind him and then drove forward while Hall remained partly outside the passenger side. McKinnie shot West in the neck during the confrontation. West continued through the parking lot, striking vehicles and a safety post and throwing Hall into a truck, rendering him unconscious.
A Kenton Circuit Court jury convicted West of receiving stolen property, first-degree wanton endangerment, two counts of first-degree criminal mischief, and first-degree persistent felony offender status. Although the jury recommended consecutive enhanced sentences totaling sixty years, the circuit court imposed the statutory maximum of twenty years under KRS 532.080(6).
The appeal addressed five issues:
- Whether West was entitled to a directed verdict because being shot prevented him from consciously disregarding risk;
- Whether he was entitled to a choice-of-evils instruction on the criminal-mischief charges;
- Whether the prosecution improperly asked if he had consulted counsel before admitting he stole the car;
- Whether evidence of speeding, attempted use of McKinnie’s Cash App card, and theft of liquor violated KRE 404(b); and
- Whether errors during the penalty phase, individually or cumulatively, required resentencing.
Analysis
1. Wantonness and the Directed-Verdict Claim
First-degree wanton endangerment requires wanton conduct creating a substantial danger of death or serious physical injury. First-degree criminal mischief may be established by intentionally or wantonly causing at least $500 in property damage. Under KRS 501.020(3), a person acts wantonly when aware of, but consciously disregarding, a substantial and unjustifiable risk.
West argued that his gunshot wound, shock, and panic prevented the conscious risk assessment necessary for wantonness. The Court rejected this as a basis for a directed verdict. The confrontation and shooting were relevant to his mental state, but they did not conclusively establish that he was incapable of recognizing risk. A rational juror could infer wantonness from his reversing into one vehicle and then accelerating through a parking lot while Hall clung to the car, striking additional vehicles and throwing Hall into a truck.
The ruling does not establish that trauma or panic can never defeat proof of wantonness. Rather, when the evidence permits competing inferences, the defendant’s mental state remains a factual question for the jury.
2. Choice of Evils and Defendant-Created Peril
KRS 503.030(1) generally justifies otherwise criminal conduct when the defendant believes it necessary to prevent an imminent injury greater than the harm prohibited by the charged offense. But KRS 503.030(2) withdraws that defense for an offense based on recklessness or wantonness when the defendant recklessly or wantonly caused the situation requiring the choice.
West claimed he damaged the vehicles while escaping the danger of being shot again. The Court held that his intentional theft initiated the chain of events leading to the armed confrontation. Stealing a running vehicle carried a substantial risk of immediate, heated pursuit by its owner. Because West intentionally—and therefore at least wantonly—created that peril, he could not invoke choice of evils against the wanton criminal-mischief charges.
This is the opinion’s central rule: a defendant cannot rely on an emergency as justification for a wantonness-based offense when his own wanton or reckless conduct created the emergency. Because West’s own testimony established the theft, no evidentiary basis existed for the requested instruction.
3. Attorney-Client Privilege: Consultation Versus Content
The prosecutor asked West whether he had consulted his attorneys before admitting that he stole the car and then used questions resembling a guilty-plea colloquy to confirm that the admission was knowing and voluntary.
KRE 503 protects confidential communications made to obtain legal services. The Court distinguished the protected content of a communication from the generally unprotected fact that consultation occurred. Because the prosecutor did not ask what West or his lawyers said, the questioning did not invade the privilege.
The holding is limited to the privilege objection presented. It does not necessarily approve every Boykin-style examination of a testifying defendant under all possible evidentiary or procedural objections.
4. Evidence of Other Acts Under KRE 404(b)
KRE 404(b) generally prohibits using other crimes or wrongs to prove a person’s propensity to act criminally. Such evidence may nevertheless be admitted for a proper non-character purpose or when it is so intertwined with essential evidence that separation would seriously impair the presentation of the case.
Speeding and liquor theft
The jury heard that Life360 showed West driving between eighty and one hundred miles per hour and that surveillance footage showed him stealing liquor. The trial court admonished the jury not to use those acts as evidence of guilt on the charged offenses. The Supreme Court held that, even if admission was erroneous, the admonition cured any prejudice. The acts were relatively minor, had a factual basis, and were not so inflammatory that the jury likely would disregard the court’s instruction.
Attempted Cash App transaction
The attempted use of McKinnie’s Cash App card was admissible because it explained how investigators identified the store and obtained surveillance footage showing West with the stolen vehicle. Excluding the transaction would have left an unexplained gap in the investigative narrative.
5. Penalty-Phase Errors and Cumulative Error
The prosecutor argued that Kenton County did not need people from elsewhere bringing stolen cars and repeated criminal conduct into the community. The Court held that this was an improper appeal to regional or sectional prejudice. West’s residence and his status as an outsider were not legitimate reasons for punishment.
Nevertheless, the misconduct was not reversible under palpable-error review. The comment was isolated, and strong aggravating evidence existed: West had ten prior felony convictions in seven cases over more than fifteen years, had injured a stranger, and had damaged multiple vehicles. The Court therefore found no substantial likelihood that the remark altered the sentencing recommendation or destroyed the proceeding’s essential fairness.
The penalty-phase exhibits also improperly identified charges that had been dismissed or reduced, including dismissed PFO charges and burglary and assault charges amended to lesser offenses. No witness or lawyer emphasized those entries, however, and the record did not show that the jury relied on them. Their inclusion was error but not palpable error.
Considering both mistakes together, the Court found no cumulative error. The regional appeal was brief, and the erroneous exhibit entries may not even have been noticed. Their combined effect did not render the penalty phase fundamentally unfair.
Conclusion
Mark West v. Commonwealth of Kentucky affirms that an acute crisis does not compel a finding that a defendant lacked a wanton mental state. Where the evidence supports conscious disregard of obvious risks, mental state remains for the jury. The opinion also applies KRS 503.030(2) to deny a necessity defense when the defendant’s own wanton conduct created the emergency.
The Court additionally drew a clear distinction between consulting counsel and disclosing privileged advice, approved limited use of intertwined investigative evidence, and recognized—but found nonreversible—regional appeals and unredacted criminal-history exhibits during sentencing. Its persuasive force is limited by its unpublished status, but it offers useful guidance on wantonness, necessity, evidentiary context, privilege, and penalty-phase fairness.