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Cardona v. Commonwealth6/6/2003
AFFIRMING
Leslie Cardona appeals from a jury verdict finding him guilty of second-degree manslaughter, second-degree wanton endangerment, and driving while intoxicated. Cardona contends that he was entitled to a directed verdict; that the trial court erred by denying the introduction of Kentucky Revised Statutes (KRS) 189.570, a statute concerned with the duties of a pedestrian; and that the trial court erred when it denied his proposed instruction on "intervening causes." Having reviewed the arguments of the appellant and finding no error, we affirm.
On October 20, 2002, at approximately 9:20 p.m., Sefua Custic; Custic's 12-year old daughter, Elvidina; an adult friend, Suada Masic; and Masic's eight year old son were crossing a poorly lit highway in Louisville. The highway contained four driving lanes and an additional middle turning lane. The foursome crossed two lanes. Whereas Masic and her son waited in the turning lane, for reasons that are not clear, Custic's daughter continued to cross the remaining two lanes. Apparently seeing that her daughter was in danger, Custic ran into the two lanes and pushed her daughter onto the shoulder of the road. A car driven by Cardona struck and killed Custic.
At the time of the accident, Cardona was in route to his ex-wife's apartment, which was about an eight-minute drive from his own apartment. Cardona concedes that he consumed alcoholic beverages just prior to leaving his apartment, that he was concerned that he might be over the legal alcohol limit, and that he administered himself a personal portable breathalyzer prior to leaving his apartment. Cardona failed sobriety tests administered at the accident scene, and a Breathalyzer test administered approximately 2 hours and 20 minutes following the accident produced a blood-alcohol reading of .176.
On December 7, 2000, Cardona was indicted for murder (KRS 507.020); first-degree wanton endangerment (KRS 508.060); and operating a motor vehicle under the influence of intoxicants (KRS 189A.010(1)(4)(a)). Following a jury trial, Cardona was convicted of second-degree manslaughter, second-degree wanton endangerment, and driving under the influence . Consistent with the jury's recommendation, on November 5, 2001, the trial court sentenced Cardona to ten years on the manslaughter conviction, 12 months on the wanton endangerment conviction, and 30 days on the driving while intoxicated conviction. This appeal followed.
First, Cardona contends that he was entitled to a directed verdict on the murder charge, and any lesser-included offenses, on the basis that there was not sufficient evidence to show that his intoxication was the cause of the traffic accident and, therefore, the victim's death.
In reviewing a motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991). If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. Id. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserve for the jury questions as to the credibility and weight to be given to such testimony. 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 is the defendant entitled to a directed verdict of acquittal. Id.
KRS 507.040, the statute which defines the offense of second-degree manslaughter, provides, in relevant part, as follows:
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