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RENDERED: JUNE 25, 2026
NOT TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0453-MR
CASEY PRESTON BYRD APPELLANT
V.
ON APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE GREGORY ALLEN LAY, JUDGE
NO. 22-CR-00337
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Following a three-day trial, a Warren County1jury convicted Casey Byrd of wanton murder, two counts of third-degree criminal mischief, and DUI. He was sentenced to a total of thirty years in prison. Byrd now appeals as a matter of right. See K Y. CONST. § 110(2)(b). Having reviewed the record, the arguments of the parties, and the applicable law, we affirm the Laurel Circuit Court.
BACKGROUND
On October 29, 2022, Appellant Casey Byrd ("Byrd") attended a gathering at his coworker's home in Laurel County to watch football. Because he had
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intended to consume alcohol there, Byrd planned to spend the night at his coworker's home. Through the course of the night, Byrd admittedly drank eight to ten beers and sampled several bourbons. Instead of staying at his coworker's house as planned, Byrd left, intending to meet a woman with whom he had been corresponding online. On his way to see this woman, he was involved in a fatal car accident that killed on-duty London Police Department Officer Logan Medlock ("Officer Medlock").
At the time of the accident, which occurred at approximately 12:49 a.m. on October 30, 2022, Byrd's blood alcohol level was estimated to be .317.2He was traveling along Highway 229, which takes a sharp left turn immediately before a stoplight at a T intersection where Highway 229 intersects with U.S. Highway 25 in London, Kentucky. Byrd, who was driving a 2022 Dodge Ram 2500 pickup, ran the red light at this intersection and struck Officer Medlock's patrol car, a 2019 Dodge Charger. Officer Medlock was driving on Highway 25 and had the green light at the time. Data from electronic data recorders collected from both vehicles revealed that less than a second before the collision, Byrd's vehicle was traveling 51.6 miles per hour ("mph") and Officer Medlock's vehicle was traveling 47 mph. In the five seconds leading up to the accident, Byrd was traveling 73 mph, but his car's electronic stability control systems overrode Byrd's commands to accelerate and slowed his vehicle in an effort to keep the vehicle stable as it took the sharp left curve immediately
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preceding the intersection. Byrd applied the accelerator up until the moment of impact. Both Officer Medlock and Byrd were traveling on roads with a speed limit of 35 mph. However, directly before the sharp left curve preceding the intersection along Byrd's route, a yellow road sign was posted advising motorists of the upcoming curve and recommending a decreased speed limit of 25 mph. Tire marks were observed on the sidewalk near the curve, indicating that seconds before the collision, Byrd had temporarily lost the ability to keep his vehicle on the road. After the collision, the impact knocked both vehicles into an adjacent cemetery. Byrd's truck landed on its passenger's side. Officer Medlock's car landed on its roof. The impact damaged several gravestones in the cemetery. Byrd survived the collision. Officer Medlock, tragically, did not. Byrd was charged with wanton murder, DUI, and first-degree criminal mischief for the damage to the tombstone. Following the trial, the jury convicted Byrd of wanton murder, DUI, and two counts of third-degree criminal mischief. Byrd now appeals his wanton murder and criminal mischief convictions to this Court.
STANDARD OF REVIEW
"When the denial of a properly preserved directed verdict motion is challenged on appeal, the standard of review is likewise whether, viewing the evidence in the light most favorable to the Commonwealth, any rational juror could have found all the elements of the crime." Quisenberry v. Commonwealth, 336 S.W.3d 19, 35 (Ky. 2011).
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"The construction and application of statutes is a matter of law. Therefore, this Court reviews statutes de novo without deference to the interpretations adopted by lower courts." Commonwealth v. McBride, 281 S.W.3d 799, 803 (Ky. 2009) (citing Wheeler & Clevenger Oil Co. v. Washburn,
127 S.W.3d 609, 612 (Ky. 2004)). "A basic rule in statutory interpretation is that the 'plain meaning' of the statute controls." Id. (citing Exec. Branch Ethics Comm'n v. Stephens, 92 S.W.3d 69, 73 (Ky. 2002)). "This rule also seeks to interpret the statute in accordance with the legislative intent." Id. (citing Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002)).
ANALYSIS
In his appeal to this Court, Byrd first alleges that the wanton murder charge should have been amended to vehicular homicide. Next, Byrd alleges that a directed verdict should have been granted on the charge of wanton murder. Lastly, Byrd alleges that a directed verdict should have been granted on the charges of criminal mischief.
A. It was not improper for Byrd to be convicted of wanton murder instead of vehicular homicide.
Following the collision, which took place in October 2022, Byrd was charged with wanton murder. In 2023, the General Assembly enacted a vehicular homicide statute, KRS3507.060. After the passage of this statute, Byrd filed a pretrial motion seeking to have the new vehicular homicide statute applied to his case, rather than the pre-existing wanton murder statute. The
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trial court denied this motion, finding that the new vehicular homicide statute was a "gap-filler,"4not a repeal of existing law. On appeal to this Court, Byrd argues that the plain language of KRS 507.060 demonstrates that the General Assembly intended to create a separate homicide statute for specific instances of driving under the influence and causing the death of another and, therefore, Byrd should have been charged with vehicular homicide instead of under wanton murder.
KRS 507.060 states, in full:
(1) A person is guilty of vehicular homicide when:
(a) He or she causes the death of another; and
(b) The death results from the person's operation of a motor vehicle, including but not limited to boats and airplanes, under the influence of alcohol, a controlled substance, or other substance which impairs driving ability as described in
KRS 189A.010.
(2) Vehicular homicide is a Class B felony KRS 507.020 states, in relevant part:
(1) A person is guilty of murder when:
. . . .
(b) Including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.5
4 The trial court quoted Representative Patrick Flannery for its use of the term
"gap filler": "Currently prosecutors are faced with the situation when they have a DUI that results in the death of someone they can charge Class A Wanton Murder which may be difficult to prove or they can go Class C Man 2 or a Class D - I believe… Reckless Homicide so this really fills the gap… and it would be what we call a strict liability crime but I think it really fills the gap in and fit something that's needed in our KRS laws on Driving Under the Influence…" Thus, KRS 507.060, a Class B felony, fills the gap between Class A murder and Class C second-degree manslaughter.
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(2) Murder is a capital offense. According to Byrd, "[i]t was the General Assembly's intention to create a separate and more specific statute concerning instances where someone is under the influence of alcohol and causes the death of another person," and thus vehicular homicide replaces wanton murder in these situations in which vehicular homicide applies.
Byrd draws support for this argument from Shouse v. Commonwealth,
481 S.W.3d 480, 486 (Ky. 2015). In Shouse, the defendant was convicted of wanton murder after she left her two-year-old son in a hot vehicle while under the influence, causing his death. Id. at 483. This Court held that her conviction under wanton murder could not stand because the underlying facts were specifically encompassed by amendments made to the second-degree manslaughter statute. Id. We explained that, "KRS 507.040(1)(b), which was added to the second-degree manslaughter statute in 2000, specifically provides that causing the death of a child under the age of eight by leaving the child in a motor vehicle under circumstances manifesting an extreme indifference to human life and creating a grave risk of death, is second-degree manslaughter,"
and thus, the statutory amendment preempts a conviction for wanton murder on those facts. Id. We held that "[t]he plain language of the amendment can only mean that the legislature intended to limit the charge under such circumstances." Id. We specifically noted that, if both statutes were permitted to apply to defendant's conduct, the evidence would be sufficient to convict
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under the plain language of both statutes. To resolve the conflict of under which statute it was appropriate to convict the defendant, we concluded that by tying the aggravated wantonness in the second-degree manslaughter statute to a very specific set of facts—death of a child under eight wantonly left in a vehicle—the legislature made a clear distinction from the murder statute. A death that happens this way is not murder, but is rather second-degree manslaughter. Id. at 485. Here, too, Byrd claims that the more specific offense of vehicular homicide should apply to his actions.
We specifically noted in Shouse:
There is no ambiguity here; both statutes, by their plain language, apply to Shouse's conduct. But that creates a conflict in the statutes, because it is not obvious which one applies and should prevail over the other to establish an offense under these circumstances, which is not to say an option is created. The same mental state—aggravated wantonness—is being applied to two different homicide offenses—murder and second-degree
manslaughter—when one is a greater offense than the other. This is outside the normal view of how offenses work, where the greater offense includes the lesser offense, and the offenses are usually differentiated by the mental state. Obviously, that cannot occur when the mental state of aggravated wantonness and the end result of death are the same for the two different offenses. But both statutes cannot control, nor can Shouse's conduct have violated both. She can be convicted of only one homicide offense. Id. at 484-85. We further elaborated that
if the jury found Shouse not guilty under the murder instruction, it could not, as a matter of law, find her guilty under the manslaughter instruction, as that offense, under these circumstances, has the same basic mental state as wanton murder. In other words, under these instructions, the jury could never find Shouse guilty of second-degree manslaughter because a finding that she was not guilty of wanton murder (i.e., homicide with aggravated wantonness) would necessarily be an acquittal of second-degree manslaughter. Id. at 487. We noted that
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[i]f KRS 507.040(1)(b) is treated as an option under which the Commonwealth may elect to proceed, then the prosecutor is in the position of arbitrarily deciding who gets charged with murder and who gets charged with manslaughter second degree based on the same mental state. This could create the worst form of selective prosecution being wholly dependent on personal choice, sympathy for a defendant, political reasons, or personal animus. Id. at 486.
Our Court was very clear in Shouse that our holding that the more particular statute applies when multiple statutes could encompass a crime was only relevant where there was true overlap in the statutes. However, an important distinction between the case at hand and the facts in Shouse is that in Shouse, both statutes at issue — second-degree manslaughter and wanton murder — required a mental state of aggravated wantonness, meaning that the statutes shared the same mental state. Id. at 484. The same is not true here. The vehicular homicide statute does not require any mental state, while the wanton murder statute requires "extreme indifference to human life" and that one "wantonly engages in conduct." As a result, one can be guilty of vehicular homicide without having displayed extreme indifference to human life. This fails the Shouse test in which we found it dispositive that meeting the elements of the more specific statute necessarily meant meeting the elements of the more general statute. We agree with the trial court's comparison between the two statutes, which it detailed in its Order Overruling Defendant's Motion to Dismiss; And, Order Overruling Defendant's Request to Amend Indictment:
This new Class B Felony created by [KRS 507.060] does not require the more stringent causal requirements of a Class A Felony Murder charge, which includes circumstances manifesting an extreme
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indifference to the value of human life with wanton conduct which created a grave risk of death or serious physical injury. The Class B Felony only requires that a defendant cause the death of another which results from the operation of a motor vehicle while under the influence. Alternatively, this new Class B Felony contains elements that differ from both the Class C and Class D felonies of Second Degree Manslaughter and Reckless Homicide. For a Class C Felony Conviction of Second Degree Manslaughter, the prosecution must only prove wanton causation of death by operation of a motor vehicle. Even easier to prove than both a Class B and Class C felony is a Class D Felony Conviction of Reckless Homicide, which only requires that the defendant act recklessly. In other words, each crime contains different elements of proof and varying levels of culpability. This indicates that the new Class B Felony is a
"gap filler," rather than an amendment or repeal of existing law. (emphasis added). We concur with this assessment. Because the statutes detailing the crimes of vehicular homicide and wanton murder require dissimilar elements, they do not fall under Shouse. The dissent observes that, prior to the enactment of KRS 507.060, existing law did not contain any gap that would have rendered the act of causing a death while driving under the influence unpunishable. That fact is of no consequence. The General Assembly, exercising its authority to set criminal policy, created a carve-out within Kentucky's homicide statutes to impose harsher penalties on individuals who cause the death of another while driving under the influence. When a person causes the death of another while driving under the influence but does not engage in wanton conduct manifesting extreme indifference to human life, the legislature chose to punish that conduct more severely than other forms of reckless or wanton homicide. In that circumstance, the person is guilty of vehicular homicide under KRS 507.060. If, however, a person causes the death of another while driving under the
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influence and also engages in wanton conduct manifesting extreme indifference to human life, that person is guilty of wanton murder under KRS 507.020. The General Assembly is permitted to impose heightened penalties for particular categories of conduct, such as causing the death of another while driving under the influence, and that is precisely what it has done here. Given that the jury found that Byrd met the statutory elements of wanton murder, and Byrd does not allege that there is insufficient evidence to support such a finding, his conviction of wanton murder must stand. Nevertheless, even if Byrd's arguments held merit, he waived the right to assert them. Byrd's actions occurred prior to KRS 507.060 taking effect. According to KRS 446.080(3), "[n]o statute shall be construed to be retroactive, unless expressly so declared." KRS 507.060 makes no express statement regarding retroactivity and thus is governed by KRS 446.110, which states:
No new law shall be construed to repeal a former law as to any offense committed against a former law, nor as to any act done, or penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect, except that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings. If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.
This Court has "consistently interpreted KRS 446.110 to require courts to sentence a defendant in accordance with the law which existed at the time of the commission of the offense unless the defendant specifically consents to the application of a new law which is 'certainly' or 'definitely' mitigating." Lawson
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v. Commonwealth, 53 S.W.3d 534, 550 (Ky. 2001). Because the vehicular homicide statute, as opposed to the wanton murder statute, is mitigating of punishment as applied to his case, Byrd would have had to "opt in." Byrd did so, but later abandoned his request.
As stated above, Byrd filed a pretrial motion to dismiss or, in the alternative, to give notice of his consent to proceed under an amended charge of vehicular homicide, arguing that the General Assembly's adoption of the vehicular homicide statute precluded a conviction under the wanton murder statute for the facts at hand. The trial court denied his motion, finding that the new vehicular homicide statute was a "gap filler" statute that did not amend or repeal existing law. Yet, when discussing jury instructions at trial, defense counsel stated, "because [the new vehicular homicide statute] was a non-existing crime [at the time of the offense], we'd have to opt in, and I don't want to opt in." (emphasis added). As a result, the jury was not presented with jury instructions for vehicular homicide. A "defendant [can] abandon[] or waive[] his request "through subsequent conduct after an initial request."
Swan v. Commonwealth, 384 S.W.3d 77, 94 (Ky. 2012). Byrd now couches the decision not to opt in as trial strategy — by not including jury instructions for vehicular homicide, he was hoping for a complete acquittal on the wanton murder charge. "It is well-settled that parties cannot argue one thing before the trial court and another to the appellate court." Blue Movies, Inc. v. Louisville/Jefferson Cnty. Metro Gov't, 317 S.W.3d 23, 39 (Ky. 2010). However framed, by not asking for a jury instruction on vehicular homicide when given
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the opportune moment to do so, Byrd waived this request and cannot argue it now before this Court.
By addressing the interplay between the wanton murder statute and the vehicular homicide statute as applied retroactively to Byrd's actions, the separate opinions accuse this majority opinion of rendering an advisory opinion. These separate opinions use the term "advisory opinion" as if it were interchangeable with "dicta" — it is not. Advisory opinions address questions concerning circumstances that have not been presented in a ripe case or controversy, and thus, the courts are deprived of jurisdiction to rule on these cases. See Nordike v. Nordike, 231 S.W.3d 733, 739 (Ky. 2007) ("The Court will not render advisory opinions or consider matters which may or may not occur in the future. It is a fundamental tenet of Kentucky jurisprudence that courts cannot decide matters that have not yet ripened into concrete disputes. Courts are not permitted to render advisory opinions . . . Questions that may never arise or are purely advisory or hypothetical do not establish a justiciable controversy. Because an unripe claim is not justiciable, the circuit court has no subject matter jurisdiction over it." (internal quotation marks and citations removed)). Dicta, on the other hand, addresses a live case or controversy with advocates zealously representing both sides, but the discussions are not necessary to the ultimate judgment. See Stivers v. Beshear, 659 S.W.3d 313, 320 (Ky. 2022) ("[D]ictum is anything 'not necessary to the determination of an issue on appeal."). As the statutory analysis discussion responded to issues that were directly presented in a genuine case or controversy, the separate
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opinions' characterization of the discussion as an advisory opinion is misplaced. Their concern, in substance, is an argument that the Court's reasoning constitutes dicta. The consequence of this distinction, of course, is that dicta is permissible discussion while advisory opinions are not. Nevertheless, this Court's discussion of the statutory analysis was neither dicta nor an advisory opinion because it was necessary to the determination on appeal. Byrd asserted that "[t]he wanton murder charge should have been amended to vehicular homicide." To evaluate his claim, it was necessary for this Court to determine whether, and to what extent, both the vehicular homicide statute and the wanton murder statute applied to Byrd's conduct. While the separate opinions contend that the issue was waived by Byrd's choice not to "opt in" to the vehicular homicide statute, Byrd could not have abandoned his choice to "opt in" unless that option was available to him in the first place. This Court was called upon to review the legal analysis undertaken by the trial court in order to present Byrd with the choices before him. Thus, this Court's analysis in regard to that question was necessary for the holding, and therefore was neither advisory nor dicta. Ultimately, Byrd's conviction of wanton murder instead of vehicular homicide was not improper.
B. The trial court did not err in denying Byrd's motion for a directed verdict on the count of wanton murder.
Next, Byrd contends that he was entitled to a directed verdict on the count of wanton murder. At the close of the Commonwealth's case, Byrd moved for a directed verdict on the wanton murder charge, which he renewed
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at the close of the defense's case. Byrd argued then, and argues now, that the Commonwealth failed to provide proof sufficient to meet the statutorily required element of "extreme indifference to human life." See KRS 507.020. The trial court denied both motions, citing evidence the Commonwealth presented of Byrd's speed at the time of the accident, the level of intoxication, and that defendant's vehicle had been on the sidewalk.
On appeal to this Court, Byrd acknowledges that in Hamilton v. Commonwealth, 560 S.W.2d 539 (Ky. 1977), this Court held that a fatal collision caused by defendant's driving of a vehicle while under the influence of alcohol, speeding, and running a red light was sufficient to constitute the crime of murder defined as a homicide committed wantonly under circumstances manifesting extreme indifference to human life. The same facts are present here, yet Byrd argues, without citing authority, that "[i]t is possible to engage in wanton behavior by driving drunk, speeding, and even running a red light, without it rising to the level of feeling extreme indifference to the value of human life." Byrd argues that the element of "extreme indifference to human life" cannot be met because expert testimony was presented that a person's level of intoxication can impair their ability to make decisions, and because immediately following the accident, Byrd expressed remorse. Byrd argues that one "who feels extreme indifference to the value of human life does not immediately express remorse and regret upon learning that he has accidentally taken a life."
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"On a motion for directed verdict, the trial court must compare the proof presented at trial with the statutory elements of the alleged offense." Smith v. Commonwealth, 636 S.W.3d 421, 434 (Ky. 2021). "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." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). "The relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson
v. Virginia, 443 U.S. 307, 319 (1979). As Byrd admits, whether "extreme indifference to human life" exists in a case is a fact-intensive inquiry. In Brown v. Commonwealth, 174 S.W.3d 421, 426 (Ky. 2005), we compiled a list of instances where we have upheld a finding of wanton murder:
In [Hamilton, 560 S.W.2d 539], we held that the evidence was sufficient where the defendant, while under the influence of alcohol, drove his vehicle at a rate exceeding the speed limit and entered an intersection against a red light. Id. at 543. In Walden v. Commonwealth, 805 S.W.2d 102 (Ky. 1991), overruled on other grounds by Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996), we upheld a wanton murder conviction where the defendant lost control of his vehicle and crossed the center line while operating his vehicle while under the influence of alcohol and at a high rate of speed. Id. at 105. In Estep v. Commonwealth, 957 S.W.2d 191 (Ky. 1997), we held that the evidence was sufficient where the defendant operated a motor vehicle at a high rate of speed after ingesting five different prescription drugs, one of which had debilitating effects of which she was aware, crossed the center line to pass another automobile in a no-passing zone, failed to return her vehicle to the proper lane, and caused a fatal collision. Id. at 193. In Love v. Commonwealth, 55 S.W.3d 816 (Ky. 2001), we held the evidence
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sufficient where the defendant was speeding, was intoxicated, and did not slow down or attempt to stop upon seeing a police car blocking the road but attempted to swerve around the police car while traveling a reported seventy to ninety miles per hour. Id. at
827. In Cook v. Commonwealth, 129 S.W.3d 351 (Ky. 2004), we held the evidence sufficient where the defendant was intoxicated, admitted he was aware of the risk of driving while intoxicated, and lost control of his vehicle while operating it at a high rate of speed because he wanted to show his passenger "what his car had." Id. at 362-63.
Here, Byrd was driving with a blood alcohol level of at least .317 at the time of the accident. He had abandoned plans to stay within the safety of his friend's home in favor of meeting a woman he had been conversing with online. He was relatively unfamiliar with the route he took, needing to use his phone's GPS to guide him. Yet, instead of using due care to navigate an unfamiliar route, he was going over twice the speed limit mere seconds before the accident. Despite taking a sharp curve, driving on the sidewalk, and being confronted with a red stoplight, he continued to apply his accelerator until the moment of impact. Byrd took certain risks when he chose to drive under the influence. Displaying remorse after the fact when he saw the consequences of those risks does not negate the fact that he nevertheless disregarded those unreasonable risks and made the decision to operate a vehicle under the influence. Displaying remorse after a tragic accident does not dictate one's mental state before a tragic accident, which is the relevant moment for determining criminal liability under KRS 507.020. "A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto." KRS 501.020(3).
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Byrd argues that "[a] person who feels extreme indifference to the value of human life does not immediately express remorse and regret upon learning that he has accidentally taken a life." However, as we said in Taylor v. Commonwealth, 671 S.W.3d 36, 44 (Ky. 2023), "it is the privilege and responsibility of the jury to determine who is to be believed and what is credible". Here, it would be reasonable for the jury to disregard any expressions of remorse by Byrd after the collision occurred and ultimately conclude that Byrd manifested extreme indifference to human life. Ultimately, we hold that the jury had sufficient evidence to find that Byrd manifested extreme indifference to human life, and we uphold the trial court's denial of Byrd's motion for a directed verdict on the charge of wanton murder.
C. The trial court did not err in denying Byrd's motion for a directed verdict on the charges of criminal mischief.
Lastly, Byrd contends that he was entitled to a directed verdict on the criminal mischief charges. At the close of the Commonwealth's case, Byrd moved for a directed verdict on the criminal mischief charges, which he renewed at the close of the defense's case. The basis of the criminal mischief charges is the damage caused to the headstones after the force of the collision caused both vehicles to land in the adjacent cemetery. At trial, the Commonwealth introduced photographs of the damaged headstones, but no direct testimony was presented regarding the value of the headstones or the amount of monetary loss from the damage. Because of this failure to provide a replacement valuation for the statutorily requisite amount of money for first- degree criminal mischief of greater than $1,000, at the close of the
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Commonwealth's proof, the Commonwealth moved to amend the indictment from first-degree criminal mischief to third-degree criminal mischief. KRS 512.040, as it existed at the time of the offense, stated in relevant part:
(1) A person is guilty of criminal mischief in the third degree when:
(a) Having no right to do so or any reasonable ground to believe that he or she has such right, he or she intentionally or wantonly defaces, destroys, or damages any property causing pecuniary loss of less than five hundred dollars ($500)[.]
Byrd contends that the Commonwealth has failed to prove that a pecuniary loss has resulted from his actions. Byrd argues that "[a]bsent any evidence of at least 1 cent of monetary loss by the owners of the headstones, there was insufficient evidence to convict [Byrd] of this crime."
While there was not any direct evidence of the pecuniary damage caused to the headstones, there was circumstantial evidence of the monetary loss presented through the photographs of the damaged headstones and testimony that the headstones were knocked over following the collision. "We have consistently held that circumstantial evidence is enough to prove any element of a crime." Early v. Commonwealth, 470 S.W.3d 729, 736 (Ky. 2015).
"Although circumstantial evidence 'must do more than point the finger of suspicion,' the Commonwealth is not required to render all other inferences unreasonable." Id. at 736-37 (quoting Rogers v. Commonwealth, 315 S.W.3d 303, 311 (Ky. 2010)).
Byrd argues that proof that an item was damaged does not necessarily mean the item has suffered a pecuniary loss in value, offering the example of a gold bar that has been dented by a hammer but still retains its initial weight
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and thus, its value. Byrd further argues that a headstone is a custom-made item that has value only to the person who commissioned it and has no resale value. Because of this, Byrd contends that the only way to determine a pecuniary loss would be if the owner had to pay for repairs or replacement of the headstone, and that there was no proof of the value of any repairs or replacements presented at trial. However, our precedent permits juries to make reasonable inferences so long as they are grounded in common sense, reason, and common experience. See Southworth v. Commonwealth, 435 S.W.3d 32, 45 (Ky. 2014). Unlike in the situation of a gold bar whose value is directly correlated with its weight, common sense instructs us that headstones are worth value to their owners based on the quality of their appearance. Headstones function to mark gravesites and pay physical tribute to the deceased. They accomplish these tasks by being ornate and positioned correctly above the grave of the deceased. To restore a headstone to its prior status to perform these functions, the owner must pay money to either repair or replace it. A jury, exercising its common sense and shared experiences, could reasonably conclude that the cost to replace or repair the damage to the headstones would be at least 1 cent. Therefore, a reasonable jury could conclude, after considering common sense, reason, and shared experiences, that the photographs depicted a pecuniary loss of less than $500. Because the Commonwealth presented sufficient evidence for a reasonable jury to find a pecuniary loss to the damaged headstones, the trial
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court did not err in denying Byrd's motion for a directed verdict on the criminal mischief charges.
CONCLUSION
For all the foregoing reasons, we affirm the judgment of the Laurel Circuit Court.
All sitting. Bisig, Goodwine, and Keller, JJ., concur. Conley, J., concurs in result only by separate opinion which Lambert, C.J.; and Thompson, J., join. Nickell, J., concurs in result only by separate opinion which Conley, J., joins. CONLEY, J., CONCURRING IN RESULT ONLY: I concur with the Court's judgment insofar as it concludes Byrd waived the issue of the applicability of KRS 507.060. Had the Court restricted itself to concluding the issue waived and, therefore, that this case does not provide the opportunity to opine upon KRS 507.060, I would fully concur. Because the issue is waived, the interpretation of KRS 507.060 is moot; "any decision rendered by this Court would be merely advisory and 'our courts do not function to give advisory opinions, even on important public issues, unless there is an actual case in controversy.'" Jones v. Commonwealth, 724 S.W.3d 695, 697 (Ky. 2025) (quoting Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992)). Instead, the Court takes the opportunity to opine upon the interpretation of KRS 507.060. I disagree with the Court's interpretation. The Court's conclusion that KRS 507.060 is a "gap-filler" is incorrect because there is no gap in our laws to be filled. The omission of a requisite mental state in KRS
507.060 indicates that it applies under any circumstance involving the death of
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a person caused by another's operation of a motor vehicle under the influence of alcohol, a controlled substance, or other substance. Therefore, had Byrd not waived the issue, his conviction for wanton murder would be reversible as KRS
507.060 should control.
I. Interpretation of KRS 507.060 Unnecessary
The Court first contends KRS 507.060 must be interpreted in order to properly determine the merits of Byrd's argument that the trial court erred in failing to either dismiss the indictment or amend it to reflect a charge of vehicular homicide rather than wanton murder. The Commonwealth opposed this motion in both respects. No reference to the language of KRS 507.060 is necessary to affirm the trial court on these points because the motion was unsound on first principles.
"[A] trial judge has no authority, absent consent of the Commonwealth's attorney, to dismiss, amend, or file away before trial a prosecution based on a good indictment." Hoskins v. Miracle, 150 S.W.3d 1, 13 (Ky. 2004). There are some rare exceptions, usually pertaining to violations of the right to speedy trial, id., but also when an indictment is obtained by the knowing presentation of false or misleading evidence to the grand jury, id. n.9, or if the indictment fails to name a public offense on its face. Commonwealth v. Young, 487 S.W.3d 430, 437 (Ky. 2015).6Byrd's motion asked for dismissal or amendment of the
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indictment. The Commonwealth objected to both. That is the end of the inquiry as the trial court had no authority to do either once the Commonwealth filed a response opposing the motion.
Byrd makes no argument that any of the exceptions our law has heretofore recognized are applicable. His only argument is that a new statute came into effect prior to trial but after the underlying conduct, a statute which he believes is more applicable. We have never recognized this as a basis for dismissing or amending an indictment, and in fact, it is contradictory to law. KRS 446.110. We have held this statute allows for "offenses committed against the statute before its repeal, may thereafter be prosecuted, and the penalties incurred may be enforced." Lawson, 53 S.W.3d at 550. Importantly, however, KRS 507.060 did not repeal or amend the murder statute. KRS 507.020. Even assuming arguendo KRS 507.060 is applicable, it simply did not exist when the underlying criminal conduct occurred. The indictment for wanton murder was valid on its face. To allow a trial court to require amendment of the indictment absent the Commonwealth's consent because a new statute came into effect, which might be applicable, would allow for the trial court "to weigh the sufficiency of evidence" and determine a different statute is more appropriate. Commonwealth v. Bishop, 245 S.W.3d 733, 735 (Ky. 2008). "The weighing of evidence is what Bishop says the trial court lacks indictment; or a lack of jurisdiction by the court itself[.]" Commonwealth v. Bishop, 245 S.W.3d 733, 735 (Ky. 2008) (internal citations omitted).
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authority to do." McCue v. Commonwealth, 652 S.W.3d 218, 221 (Ky. App. 2022). "Outside of the rare exceptions, a facially valid indictment is properly triable: 'the proper time for the trial court to consider evidentiary sufficiency is after the evidence has been heard and upon a motion for directed verdict.'"
Young, 487 S.W.3d at 437 (quoting Commonwealth v. Allen, 980 S.W.2d 278, 281 (Ky. 1998)).
Therefore, the trial court correctly denied Byrd's motion. Thus, I have affirmed the trial court without reference to KRS 507.060's language thereby demonstrating that it is unnecessary to interpret KRS 507.060 to reach the correct conclusion on this issue.
II. KRS 507.060 is not a Gap-Filler Statute
The Court also holds that, pursuant to KRS 446.110, Byrd would have had to affirmatively "opt-in" at trial to obtain its benefits because it provided a lesser punishment than wanton murder. It concludes Byrd abandoned this issue at the jury instruction phase of trial. I agree, and, therefore, would hold that this issue is not properly preserved for appellate review and we need not address the meaning of KRS 507.060. Despite this, the Court does not believe it's interpretation of the statute is dicta and purports to give an authoritative interpretation of it. As stated, I disagree with the giving of that interpretation as well as the interpretation itself. Because this is a good-faith disagreement over the meaning of the law, and a question of first impression to boot, I believe it is incumbent upon me to offer a rebuttal now for the sake of bench and bar and,
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hopefully, the General Assembly, in spite of my own misgivings of adding to that dicta.
On several occasions, the Court describes KRS 507.060 as a "gap-filler"
statute, raising the question of where in our law is there a gap for vehicular homicides? If a drunk driver intentionally causes the death of another through the operation of a motor vehicle, then he would be guilty of intentional murder. KRS 507.020(1).7If a drunk driver causes the death of another by operation of a motor vehicle under wanton circumstances manifesting extreme indifference to human life, then he is guilty of wanton murder. Id. at (2). If a drunk driver causes the death of another by operation of a motor vehicle under wanton circumstances but without manifesting extreme indifference to human life, then he is guilty of second-degree manslaughter. KRS 507.040(1)(a). If a drunk driver causes the death of another by operation of a motor vehicle with a reckless disregard for human life, then he is guilty of reckless homicide. KRS
507.050(1).
A person cannot be found guilty of any felony criminal offense unless he commits the unlawful conduct "intentionally, knowingly, wantonly or recklessly as the law may require[.]" KRS 501.030(2). Therefore, there is no gap in our laws.8A drunk driver who kills another person by operation of a motor vehicle
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under any of the prohibited mental states can be prosecuted according to that mental state. I leave it then to the Court to explain what gap exists in our laws and where it is found. Under what circumstances does KRS 507.060 apply but not the others if it is only a gap-filler?
The best the Court can offer is that not all second-degree manslaughters or reckless homicides arising from the death of a person caused by the operation of a motor vehicle require intoxication. That is true, but this is not a Blockburger issue. Stewart v. Commonwealth, 306 S.W.3d 502, 505 (Ky. 2010). This is a question of gaps in the law, not overlaps. KRS 507.060 says whenever a person operating a motor vehicle under the influence of alcohol, a controlled substance, or other substance, causes the death of another by means of the motor vehicle, then he has committed vehicular homicide. Generally speaking, these exact circumstances will sustain a wanton murder conviction. Estep, 957 S.W.2d at 192-93. They will also sustain a second-degree manslaughter conviction. Burchett v. Commonwealth, 98 S.W.3d 492, 494 (Ky. 2003). They will also sustain a reckless homicide conviction. Commonwealth v. Harrell, 3 S.W.3d 349 (Ky. 1999). The only substantive difference in these cases is the mental state. The question is how to differentiate vehicular homicide from wanton murder, second-degree manslaughter, or reckless homicide under the 'knowingly' is practically non-existent and likely to result in confusion." Because the death of another is an essential element of vehicular homicide, KRS 507.060(1), the applicable mental states must either be intentional, wanton with extreme indifference to human life, wanton, or reckless.
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specific circumstances described in KRS 507.060. That the latter three crimes don't always encompass vehicular homicide or that they contain different mental states is not an answer. If KRS 507.060 is only a gap-filler statute, then under what circumstances must a vehicular homicide charge be brought but not a wanton murder charge, or second-degree manslaughter charge, or reckless homicide charge? The Court fails to answer this question.
III. Omission of Mental State Indicates Broad Purpose
KRS 507.060's omission of a mental state is curious but not unprecedented. Our statutes, in fact, detail what is to be done in such a scenario. KRS 501.040. When a specific statute omits a mental state, it is necessary for the Court to determine the significance and meaning of the omission by analyzing the language of the statute itself and referencing other statutes that touch upon the subject matter. As demonstrated above, there is no gap in our statutes that could leave the death of another caused by the operation of a motor vehicle by a person under the influence of alcohol, controlled substances, or other substances, unprosecutable. KRS 507.060, therefore, cannot be understood as a minor or discrete gap-filler statute insofar as mental states are concerned. Nor does it serve as some amorphous lesser- included offense for the same reason. Second-degree manslaughter is a lesser included offense of murder. Commonwealth v. Wolford, 4 S.W.3d 534, 535 (Ky. 2000). Reckless homicide is a lesser included offense of second-degree manslaughter. Hudson v. Commonwealth, 385 S.W.3d 411, 418 (Ky. 2012).
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Additionally, the listing of "alcohol, a controlled substance, or other substance" in KRS 507.060(2) does not fill any gap because none of the other statutes condition murder, second-degree manslaughter, or reckless homicide upon the type of substance used to impair one's ability to operate a motor vehicle. The definition of "motor vehicle" as "including but not limited to boats and airplanes" does not fill a gap in our legislation because a motor vehicle has always been broadly interpreted to include a boat.9As for airplanes, admittedly, such a case has never arisen in Kentucky. Let us assume operation of airplanes under the influence was not previously covered by the statutes. If the inclusion of airplanes is all the General Assembly wanted to do, why create an entirely new category of offense labelled vehicular homicide? Is there a greater instance of legislative overkill if all the General Assembly was trying to do was clarify that airplanes will be considered a motor vehicle if a pilot operates one under the influence and causes the death of another by its operation? The General Assembly was doing something quite broader than merely amending the understanding of motor vehicles.
What then is the significance of the General Assembly's omission of a mental state in KRS 507.060? I conclude the intent behind the omission is to make the mental state irrelevant for the charge, but not irrelevant for the conviction. In other words, whenever a person operates a motor vehicle while
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under the influence of alcohol, a controlled substance, or other substance, and kills another person because of that operation, then he has committed vehicular homicide regardless of whether his operation was intentional, wanton with extreme indifference to human life, wanton, or reckless. The statute's applicability does not depend upon the mental state. Obviously, however, a conviction does require a culpable mens rea. KRS 501.030(2). The Commonwealth's burden in any prosecution for vehicular homicide will have to include proof of the mens rea on a case-by-case basis, but, practically speaking, the Commonwealth will only ever have to prove recklessness to obtain a conviction.
Shouse does not require a contrary result. Shouse's resolution was predicated upon the conclusion that both wanton murder and second-degree manslaughter when "[l]eaving a child under the age of eight (8) years in a motor vehicle under circumstances which manifest an extreme indifference to human life and which create a grave risk of death to the child, thereby causing the death of the child," were applicable to Shouse's conduct. 481 S.W.3d 480, 484 (Ky. 2015) (quoting KRS 507.040(1)(b)). Both statutes applied, but both could not control, nor could Shouse be guilty of both. Id. at 485. Accordingly, there was a conflict between the statutes because "[t]he same mental state— aggravated wantonness—is being applied to two different homicide offenses— murder and second-degree manslaughter—when one is a greater offense than the other." Id.
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Shouse's applicability is questionable because it was dealing with a unique conflict between two statutes based upon the same mental state. Unlike Shouse, KRS 507.060 omits a mental state and there are several statutes potentially applicable in any given case. Therefore, the same mental state is not being applied to two different homicide offenses. Id. at 484-85. Instead, a homicide offense—vehicular homicide—is being applied regardless of mental state. But there is conflict in all cases between a greater and lesser offense. Murder is a capital offense, KRS 507.020(2), and greater than vehicular homicide's status as a Class B felony, KRS 507.060(2). The Class B felony status is greater than second-degree manslaughter's Class C felony status, KRS 507.040(2), and reckless homicide's Class D felony status. KRS 507.050(2). KRS 507.060 eliminates lesser-included offenses for vehicular homicide. Vehicular homicide applies regardless of mental state, therefore, a lesser mens rea is not a defense.
Failure to understand KRS 507.060 as its own category of offense does make Shouse applicable. Resolution of the conflict in Shouse was to hold that by tying the aggravated wantonness in the second-degree manslaughter statute to a very specific set of facts—death of a child under eight wantonly left in a vehicle—the legislature made a clear distinction from the murder statute. A death that happens this way is not murder, but is rather second-degree manslaughter. Shouse, 481 S.W.3d at 485. This was important because it was argued the General Assembly had created an option between two statutes, leaving the Commonwealth to choose under which statute to pursue a prosecution. We
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condemned that argument not merely as statutorily unwarranted, but because such a conception authorized "arbitrary and selective prosecution." Id. at 486. In a case where the death of a child under eight is caused by leaving the child constrained in a vehicle with a mental state of aggravated wantonness, the charge is, by the clear language of the statute, second-degree manslaughter. For a prosecutor to charge a defendant with murder instead of second-degree manslaughter under the facts of this case was contrary to the mandate of the second-degree manslaughter statute.
Id. The same reasoning applies here.
Because KRS 507.060 does not contain a mental state, what is there to distinguish it from reckless homicide or second-degree manslaughter when the death has occurred through operating a motor vehicle under the influence with either a reckless mental state or a wanton mental state? In those circumstances, under the Court's interpretation, the Commonwealth will be allowed to selectively prosecute a person with a greater offense. Similarly, for wanton murder the Commonwealth could hang a capital crime over the defendant's head rather than charging for vehicular homicide, a Class B felony. The lack of a mental state in KRS 507.060 means any mental state is applicable thereby creating an option for the Commonwealth. Shouse does control under these circumstances to prevent "selective prosecution being wholly dependent on personal choice, sympathy for a defendant, political reasons, or personal animus." 481 S.W.3d at 486. By interpreting KRS 507.060 as creating a separate category of offense regardless of mental state, the opportunity for selective prosecution cannot arise.
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IV. Conclusion
For the aforementioned reasons, I concur in result only as the Court correctly concluded Byrd had waived the question of KRS 507.060's application. It is unnecessary to interpret KRS 507.060 to affirm the trial court on any issue presented; thus, discussion of the statute is merely advisory. Nonetheless, because the Court opined upon the statute and I disagree with that opinion, I explained my own interpretation for the sake of bench and bar. Lambert, C.J.; and Thompson, J., join.
NICKELL, J., CONCURRING IN RESULT ONLY: I agree with much of what has been written by my esteemed colleagues, particularly on the point that Byrd waived any error relative to the application of KRS 507.060. I would further conclude that Byrd invited the error and cannot now be heard to complain. Because the majority declines to find error occurred and thus concludes Byrd is not entitled to relief on this issue, I concur in its result. I write separately, however, to express my view that any expression as to the interpretation of KRS 507.060 is nothing more than dicta and, as noted by Justice Conley, represents an improper advisory opinion. Thus, as this Court's function is not to provide such decisions, I would "leave this question for another day." Dunn v. Solomon Foundation, 723 S.W.3d 711, 734 (Ky. 2025) (quoting Kulkarni v. Horlander, 701 S.W.3d 181, 189 n.8 (Ky. 2024)). Generally, a reviewing court will not permit a party to seek relief from an invited error. Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky. 2011)
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(citing Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006)). The law distinguishes "between forfeited errors, which are subject to plain error review, and waived errors, which are not[.]" Id. at 38; see also Gasaway v. Commonwealth, 671 S.W.3d 298, 313 (Ky. 2023). Invited errors constitute a waiver and are defined as "invitations that reflect the party's knowing relinquishment of a right[.]" Quisenberry, 336 S.W.3d at 38 (citing United States v. Perez, 116 F.3d 840 (9th Cir. 1997)). In other words, "the defendant cannot well complain of being prejudiced by a situation that he or she has created." 24 C.J.S. Criminal Procedure & Rights of Accused § 2548 (2024). See also Miles v. Se. Motor Truck Lines, 295 Ky. 156, 173 S.W.2d 990, 998 (1943) ("It is the rule that one cannot complain of an invited error.") In Wright v. Jackson, 329 S.W.2d 560, 562 (Ky. 1959), our predecessor Court stated "[w]e have often held that a party is estopped to take advantage of an error produced by his own act." (Citation omitted).
Byrd did not merely fail to raise an objection during the instruction conference when discussing a possible vehicular homicide instruction. He affirmatively stated to the trial court that he did not wish to have such an instruction given. RCr109.54(2) explicitly places the burden on the parties to make their preferences and objections regarding instructions known to the trial court. Byrd's affirmative actions and representations plainly constituted a
"knowing relinquishment of a right," Quisenberry, 336 S.W.3d at 38, thus
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militating in favor of a finding of waiver and not mere forfeiture. I would so hold and refrain from any further commentary on the merits of the alleged error.
This Court should maintain consistency and follow the well-established rule that "one cannot commit to an act . . . and later complain on appeal that the trial court erred to his detriment." Gray, 203 S.W.3d at 686. In my view, an appellate court should not encourage tactics which "allow a litigant to lead a trial court down a primrose path and later, on appeal, profit from the invited error." United States v. Gates, 709 F.3d 58, 63 (1st Cir. 2013). And because
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COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt Aaron Reed Baker
Assistant Public Advocates
COUNSEL FOR APPELLEE:
Russell M. Coleman Kentucky Attorney General Joseph A. Beckett
Assistant Attorney General