BARDSTOWN, Ky. (WDRB) – She wasn’t drinking, doing drugs, texting or speeding.

But high school student Kailey Jo Farmer could end up a convicted felon spending as much as five years in prison for, according to her attorneys, “accidentally and unknowingly running a red light,” smashing into another car on Dec. 14 and killing Wanda Rogers, 60.

Farmer, an 18-year-old senior at Nelson County High School, has been charged with felony reckless homicide, a legal rarity in a fatal wreck in Kentucky when the driver is not accused of being drunk, texting or speeding.

“I’ve never heard of it here before,” said Paul Gold, a Louisville defense attorney. “Sometimes drivers just miss something and have accidents. Can you imagine if you had a loved one … get charged with a homicide if they took their eyes off the road” and caused a fatal wreck?

But Nelson County prosecutors and police argue that Farmer’s actions were clearly reckless, pointing out that she never slowed down or tried to avoid the vehicle Rogers was riding in and ran the light six seconds after it turned red.

Rogers’ family declined to comment.

To prove reckless homicide, prosecutors must show a person failed to perceive “a substantial and unjustifiable risk” that “constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation,” according to state law.

It is unusual, but not unheard of, for someone to be convicted of reckless homicide for a fatal wreck when drugs and alcohol are not involved.

In 1996, for example, a Sheriff’s Deputy in Fayette County was convicted of reckless homicide when he collided with someone while driving between 95 and 100 miles per hour.

But a video of Farmer’s wreck shows her driving at a “reasonable speed,” and she was not cited for speeding or any other infraction, according to court testimony and records.

Bardstown Police Officer Derek Sidebottom testified that Farmer must have been distracted by something, as the video taken from a nearby business surveillance camera showed her running the light about six seconds after it turned red.

“Based on the video, there was no hesitation, no attempt to stop which made me believe that she may have been preoccupied doing something while she was driving,” Sidebottom testified on Jan. 17. “So whether it be playing with the radio, talking on her cell phone, eating breakfast … people do a lot of things while they drive. I just felt there was reasonably (belief she was) preoccupied while she was doing something.”

Under questioning by Farmer’s attorney, Sidebottom acknowledged there was no indication that alcohol or speeding was involved. Phone records show Farmer was not texting or talking on her phone at the time. After being taken to the hospital with minor injuries, Farmer told Sidebottom she didn’t remember what happened.

So how does the case rise to reckless homicide?

“I believe if you blow through a stoplight, that is reckless,” the officer said. “A death occurred as a result of this accident. I think that speaks for itself.”

Defense attorney Josh Schneider, who along with Robert Boyd represents Farmer, argued in front of a Nelson District Court judge Jan. 17 that a traffic violation – such as running a red light – on its own is not enough to warrant a reckless homicide charge.

“All we have is she ran a traffic light,” he said.

The prosecutor, Assistant Nelson County Attorney Janie Hite, told the judge “there was definitely recklessness that occurred here.”

“Do we know why she did it?” Hite asked during the court hearing. “No, as we are sitting here today, we don’t.”

But Hite said Farmer was the definition of reckless that day, making no effort to slow down her vehicle as she plowed through the red light.

“You have to be aware of your surroundings. I don’t know why she failed to stop or slow down … but I do know that she owed a duty to those around her on the roadway and to our decedent, your honor, to drive in such a matter that this would not occur,” Hite told Nelson District Judge John Kelley. “So I think we know there was a gross deviation.”

Kelley ruled it was “certainly an unfortunate case in that someone has lost their life due to Ms. Farmer’s actions, and it’s unfortunate she is 18 years old facing these serious charges … but there is probable cause to show there was reckless behavior.”

The case has been sent to a grand jury, which will decide whether or not to indict Farmer on the charges. Nelson Commonwealth’s Attorney Terry Geoghean did not return a phone message seeking comment.

Higher courts in Kentucky previously have thrown out reckless homicide cases in which alcohol and speed were not a factor.

In 1999, for example, the Kentucky Court of Appeals overturned a reckless homicide conviction of a man whose child had been thrown from his vehicle and killed after a wreck.

Corey Mitchell was accused of not properly restraining his infant daughter. But the appeals court found that failure to use a proper child restraint did not fit the “gross deviation” requirement of recklessness and ruled that a judge should have tossed it out. The state Supreme Court agreed.

In 2007, the court of appeals overturned another case in which Jason Ray Ison was convicted of, among other things, three counts of reckless homicide when he wrecked, killing three passengers with tires that were “extremely worn.”

“Even in light of the horrific results, in the absence of some aggravating circumstance such as being under the influence of alcohol or controlled substances, traveling at excessive speed, or violating traffic statutes, Ison’s driving of a vehicle with worn tires did not constitute criminal conduct with the prerequisite mental state for ‘reckless’ behavior,” according to the appeals court. “It was, therefore, clearly unreasonable for the jury to find Ison guilty of the three counts of reckless homicide.”

Perhaps the most well-known example of a vehicular homicide case stemming from someone running a red light in Kentucky is that of Demond Brown.

Brown was convicted of two counts of wanton murder and wanton endangerment and sentenced to 20 years in prison in 2002 for running a red light and killing two people in Hopkinsville.

Brown admitted during testimony at his trial that he knew the light was red when he ran it but believed he could time it right and it would be green by the time he went through the intersection. He was also speeding and possibly “watching television” while driving, according to court records.

In addition, at least some jurors believed Brown was racing another vehicle at the time of the wreck, although Brown denied that allegation.

The Kentucky Supreme Court upheld the conviction, ruling Brown’s “decision to run the red light even though he knew it could cause a crash was proof of an ‘extreme indifference to human life.’”

In the lone dissent, Justice Will Scott argued that the charge didn’t fit the crime for what he said was a “young kid who made a terribly tragic mistake.”

Brown was pardoned in 2007 by then Gov. Ernie Fletcher, in part because he was 19 at the time of the wreck and had not been using drugs or alcohol.

But in Brown’s case, he acknowledged that he deliberately ran the red light. There is no indication that Farmer ran the light in Bardstown on purpose.

University of Kentucky law professor Robert Lawson, who was the principal author for Kentucky’s penal code in the 1970s, said it sounds like, at best, prosecutors have a case of negligence, which is a misdemeanor charge.

“They have to have something showing that she consciously disregarded a known risk of death to someone,” like purposely running the light, Lawson said. “Doesn’t sound like what they have is enough.”

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