Susan Jackson Balliet, Assistant Public Advocate
We all know the standard boilerplate for setting up a directed
verdict argument: "[i]f the court finds, under the evidence as a whole, it was
clearly unreasonable for the jury to find the defendant guilty, directed verdict
of acquittal should be granted." Commonwealth v. Benham, 816 S.W.2d 186
(Ky. 1991); Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983); Trowel
v. Commonwealth, 550 S.W.2d 530 (Ky. 1977). And everyone (especially the
Commonwealth) always uses the following quote from Benham to set out the
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. 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. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony. Benham, 187.
But there is a better way for defendants to describe the Benham standard, a way that is equally valid based on the language of Benham. Defense counsel should be talking about Benham’s "scintilla standard" and whether there is - or is not - more than a scintilla of evidence against the client.
The Kentucky Supreme Court established the "scintilla" standard
for evaluating sufficiency of evidence in Commonwealth v. Sawhill, 660
S.W.2d 3, 5 (Ky., 1983). The court stated in Sawhill, that a trial court
is "authorized to direct a verdict for the defendant if the prosecution produces
no more than a mere scintilla of evidence. Obviously, there must be evidence of
substance." (Id.) Applying the scintilla standard, in Commonwealth v.
Benham, 816 S.W.2d 186, 187-188 (Ky., 1991) the Kentucky Supreme Court
reversed the Court of Appeals, which had found certain evidence to be
less than a scintilla. In Benham the Supreme Court stated the
following evidence was "considerablymore" than a scintilla:
Benham was in the area of the barn fire and had an opportunity to commit the crime. An officer and a bystander saw Benham wet and muddy which could have come from the area where the fire started; he had a motive because the mayor had had Benham arrested previously; Benham admitted setting the fire, and there was a handwritten statement by his cousin which documented Benham's admission of guilt. Benham's statement to the police was that he noticed smoke, but neither smoke nor fire was visible from the road. Benham also said he saw sparks and juice from electrical wires through which no current flowed. (emphasis added)
Of course, most of us would readily agree there was a whole lot more than a scintilla of evidence against Mr. Benham. And unfortunately –precisely because the case involved so much more than a scintilla of evidence - the Benham case really doesn’t give much guidance as to what is or is not a scintilla.
But luckily, there is a case that does give us guidance. In Johnson v. Commonwealth, 885 S.W.2d 951 (Ky. 1994) the only evidence against the defendant was that the defendant may have run a red light when he crashed into a woman’s pick-up truck and killed her. Johnson, 885 S.W.2d at 952-953. The Court held this was not enough evidence to sustain Johnson’s conviction. The Court held that a mere possibility that a defendant may have done wrong is no more than a scintilla of evidence against that defendant. Johnson applied the scintilla standard to extremely close facts. Therefore Johnson is much better than Sawhill or Benham as authority that describes the true parameters of the scintilla standard.
As defense counsel we should be arguing the scintilla standard and citing Johnson in every case where the evidence arguably presents a "close call." See also Adkins v. Commonwealth, 313 Ky. 110, 230 S.W.2d 453 (Ky., 1950) (conviction not to be based on speculation, suspicion, conjecture) and DeAttley v. Commonwealth, 310 Ky. 112, 220 S.W.2d 106 (1949) (ditto).
Of course, it will come as no surprise that Johnson is
something of an isolated case, and in applying the scintilla standard after
Benham, the Court has usually found evidence to be more than a scintilla.
Defense counsel will simply need to be aware of these cases, in order to be able
to distinguish them. For instance, in Brown v, Commonwealth, 914 S.W.2d
355, 357 (Ky.App. 1996) the court looked to the following facts and found there
was "much more than a mere scintilla" of evidence to sustain Brown’s and his
On October 13, 1993, Terrence Brown and Michael Dewon Ross were apprehended for suspected drug activity near the Westside Plaza in Lexington, Kentucky. At the time of his arrest, Brown had in his possession a loaded semi-automatic handgun, twenty rocks of crack cocaine, $582.00 in cash, a mobile paging unit, rolling papers and false identification. Ross was found with $1,419.00 in cash, a pager and a stolen bicycle.
Brown, 914 S.W.2d 355, at 356-357.
Brown was caught red-handed, and the circumstantial evidence against Ross was very strong. Ross was present at the scene with Brown and holding a very large sum of money and a pager, two common accouterments of a drug dealer. There was apparently no dispute between the commonwealth’s witnesses as to the facts in Brown. This was evidence "of substance" as required by Sawhill.
In finding more than a scintilla of evidence in Edmonds v. Commonwealth, 906 S.W.2d 343, 346 (Ky. 1995) the Court noted there was an "unequivocal" in-court identification of the defendant by an informant. There was also an audio tape of the drug buy. Edmonds was arrested with other "First Family" members in a Frankfort apartment, and a witness testified Edmonds was a member of the "First Family" who made trips to New York to purchase large quantities of cocaine.
In Baker v. Commonwealth, 973 SW.2d 54, 55 (Ky., 1998) the issue was whether the defendant subjected the victim to a risk of injury, and the evidence was that the victim’s feet were seen dangling out of an open door of the vehicle as it sped away. Understandably, the court held there was more than a scintilla of evidence to sustain the conviction in Baker.
Whenever a directed verdict issue arises, in addition to Sawhill and Benham, defense counsel should argue the scintilla standard and cite Johnson. And of course, counsel should also remember to argue that a conviction without sufficient supporting evidence denies a defendant his right to federal due process of law, as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution, as well as Sections 2 and 11 of the Kentucky Constitution. Perkins v. Commonwealth, 694 S.W.2d 721, 722 (Ky.App., 1985).
Susan Jackson Balliet
Assistant Public Advocate, Appeals
100 Fair Oaks Lane Suite 302
Frankfort, Kentucky 40601
Tel: (502) 564-8006 ext. 163; Fax: 564-7890
Return to the Table of Contents