by Matt Clarke

The Supreme Court of Kentucky reversed convictions for first-degree wanton endangerment (“FDWE”) and first-degree persistent felony offender, holding that the trial court erred by failing to give a second-degree wanton endangerment (“SDWE”) jury instruction when the admitted evidence supported such an instruction.

Dwight Taylor met A.P. at a nightclub, and they went to her house. According to A.P., Taylor went to the restroom and, when he came back out, grabbed the back of her neck, strangling her while also pushing her onto the bed. She fought back. Taylor grabbed her neck with both hands and, for 20 minutes, kept at least one hand on her neck, strangling her and causing her to intermittently lose consciousness.

Later that morning, A.P. went to a hospital and saw a sexual assault nurse examiner. Taylor was charged with rape, FDWE, and first-degree persistent felony offender. The jury acquitted him of rape but convicted him on the other charges.

Taylor testified and denied raping or even having sex with A.P. He claimed she demanded $200 from him after Taylor mentioned he was married. He said she then swung at him, prompting him to briefly squeeze her neck with his hands to “back her off.”

The nurse examiner testified that A.P. had “a multitude of injuries,” including small spots on the skin caused by capillaries hemorrhaging, bruising, abrasions, and swelling on the “face, neck, ears, mouth, chest, shoulders, forearms, and eyes.” Dozens of photographs were submitted into evidence regarding these injuries. The nurse examiner testified several of these injuries, especially on the neck and eyes, “were consistent with strangulation.”

Taylor requested and tendered an SDWE jury instruction. The trial court denied it. On appeal, the Court of Appeals split 2-1 on this issue, affirming the trial court. The dissent believed the courts “had applied a credibility determination to Taylor’s account rather than an objective consideration of whether his account, if believed, was sufficient to support a determination of guilt for second-degree wanton endangerment.” Taylor successfully applied for discretionary review on the SDWE jury instruction issue.

Reviewing for abuse of discretion, the Kentucky Supreme Court noted that a lesser-included offense instruction is required when a jury could have a reasonable doubt as to the greater offense and also find guilt beyond a reasonable doubt on the lesser offense. Parker v. Commonwealth, 600 S.W.2d 209 (Ky. 1997). The difference between first-degree and second-degree wanton endangerment is that the “higher degree requires conduct which creates a substantial danger of death or serious physical injury while the lower degree is satisfied by conduct which only creates a substantial danger of physical injury.” Combs v. Commonwealth, 652 S.W.2d 859 (Ky. 1983). Courts have a duty to provide instructions “on the whole law and this rule requires instructions applicable to every state of case deducible or supported to any extent by the testimony.” Kelly v. Commonwealth, 267 S.W.2d 536 (Ky. 1954). They must also construe the evidence in the light most favorable of the party seeking the jury instruction. Allen v. Commonwealth, 338 S.W.3d 252 (Ky. 2011).

The general rule is that the defendant’s uncorroborated, self-serving testimony is insufficient to support a jury instruction for an affirmative defense. Brafman v. Commonwealth, 612 S.W.2d 850 (Ky. 2020). However, the Court explained: “Taylor did not assert an affirmative defense. He did not rely on any separate, distinct, or independent facts apart from the circumstances of the crime charged. His entire defense was that his conduct” did not constitute FDWE but could constitute SDWE.

After a thorough analysis of Brafman and its progeny, the Court summarized the governing law on this issue as follows: “Where a defendant has pled not guilty and restricted his defense to disputing the circumstances of the elements of the crime charged, his uncorroborated testimony in support of that defense will generally merit a jury instruction, because it is the jury’s authority to determine the facts and accord weight and credibility to evidence.” The Court instructed that “there is no bright line rule that defendant has to testify, much less that his testimony must be corroborated, to receive a lesser-included offense instruction.” Thomas v. Commonwealth, 587 S.W.2d 264 (Ky. App. 1979).

Turning to the present case, the Court concluded that because “Taylor’s testimony, if believed by the jury, would have supported a finding of guilt for [SDWE], the instruction on [SDWE] should have been given.” The Court agreed with the dissent in the Court of Appeals that the lower courts had improperly engaged in a credibility determination of Taylor’s testimony. Thus, the Court held that the trial court abused its discretion by failing to give the requested jury instruction because the defendant’s uncorroborated testimony was sufficient evidence to support a guilt determination by the jury on SDWE.

Accordingly, the Court reversed the Court of Appeals, vacated the convictions, and remanded the case. See: Taylor v. Commonwealth, 671 S.W.3d 36 (Ky. 2023).  

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