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Partin v. Commonwealth11/5/2004
AFFIRMING
David Partin was convicted of three counts of first-degree wanton endangerment, resisting arrest, disorderly conduct, possession of marijuana, carrying a concealed deadly weapon, and operating a motor vehicle while under the influence for which he was sentenced to a total of four years' imprisonment. He challenges the judgment convicting him of those offenses alleging: (1) that the trial court erred in denying his motion for a directed verdict as to the wanton endangerment charges; (2) that it was error to refuse to instruct the jury on wanton endangerment in the second degree; (3) that the sentencing process was flawed in allowing the jury to consider sentencing on the misdemeanor counts concurrently with the felony counts; and (4) that the instruction on driving under the influence was improperly drafted to allow the jury to convict him under alternate theories. Because our review of the record discloses no reversible error, we affirm the judgment of the Bell Circuit Court.
Appellant's conviction stems from a confrontation with police officers in the early morning hours of September 25, 2000. Officer Scott Elder of the Bell County Sheriff's Department testified that as he was returning from a previous call, he spotted an all terrain vehicle being operated without lights on the wrong side of the road. Officer Elder stated that upon seeing the ATV, he turned his cruiser around, activated his blue lights and followed the ATV a short distance to a gated yard. The officer stated that the ATV had already entered the yard when he approached the closed gate and that he recognized appellant as the driver of that vehicle. The officer radioed for backup when appellant removed a shotgun from a rack on the ATV and pointed it at him.
Although appellant returned the shotgun to the rack at Officer Elder's instruction to put the gun down, when advised that he was under arrest, appellant turned, placed his hand in his pocket and began to walk away at a fast pace. About this time, Officers Hendrickson and Mosley of the Pineville City Police arrived at the scene and attempted to help arrest appellant. A struggle ensued, and in the course of the officers' attempt to subdue appellant, Officer Hendrickson noticed that appellant had his hand in his pocket and detected the outline of a pistol. Officer Hendrickson testified that, after appellant was sprayed with pepper spray, he was able to pull appellant's hand away from the gun and appellant was brought under control. According to the officers, a loaded .380 pistol was removed from appellant's pocket.
The jury heard testimony that appellant's speech was slurred, that he was glassy-eyed, and that he smelled strongly of alcohol. Because appellant's head was bleeding, apparently from the scuffle, the officers transported him to the local hospital for treatment. Officer Elder testified that as he was conducting a pat-down search for additional weapons prior to entering the hospital, he discovered a small quantity of marijuana. He also stated that appellant was quite unruly while awaiting treatment at the hospital.
Appellant testified at trial, denying any conduct which could result in the charges leveled against him. He stated he was on his way home, driving his ATV on a cart path with his lights on. He stated that upon entering his property and closing the gate, Officer Elder started yelling at him to come back to the gate. Appellant related that despite the facts he complied with the officer's request, did not point a shotgun at the officer, did not have a handgun or marijuana in his pocket, and was not intoxicated or unruly, the officers nevertheless hit him in the head with the butt of a gun then tackled hi
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