A former University of Kentucky student wasn’t impaired when he struck a 4-year-old outside a football game three years ago, his attorney argued as the trial opened Monday.


But Fayette County Commonwealth’s Attorney Lou Anna Red Corn told jurors Jacob Heil “knew he was impaired.”

Heil is on trial for reckless homicide and driving under the influence charges. In addition to disagreeing over how intoxicated Heil was, prosecutors and the defense attorney argued about whether Heil had run off the road when he hit the child.

Heil hit 4-year-old Marco Shemwell with a car on Sept. 15, 2018. Marco was leaving a University of Kentucky football game with his father and brother before he was hit on Cooper Drive. Marco died two days later at Kentucky Children’s Hospital. Heil was initially charged with DUI and later indicted on a reckless homicide charge.

Marco’s mom told jurors Monday what Sept. 15, 2018, was like for her. Liz Shemwell said her sons were watching cartoons and playing that morning before she and her husband, Benjamin Shemwell, told them they could go to the UK football game. Benjamin Shemwell took the sons and Liz Shemwell stayed home, she said.

“They were excited to just have a daddy-sons day at the football field,” Shemwell said. “Marco especially. He loved football.”

The father and his sons watched the first half of the game and the band’s performance before deciding to leave the game early, Shemwell said. Other court testimony indicated the family was walking away from the stadium when the group got to Cooper Drive where the crash happened.

“I received a text message from Ben that just said 911,” Shemwell said. She called her husband who told her Marco had been hit. Ben Shemwell knew the injuries were severe and told his wife they needed to pray.

Heil’s blood-alcohol content was between .061 and .068 at the time of the crash, according to investigators. That’s above the legal limit for people under 21. Heil was 18 at the time of the crash. Defense attorneys and prosecutors indicated that there would be conflicting testimony about whether or not Heil ran off the road when he hit Shemwell.

Heil told police he drank a couple beers that day.

Heil’s attorney, Christopher Spedding, argued there was no evidence to suggest Heil was impaired. He said there was a difference between “impaired” and “under the influence,” and evidence would show Heil was under the influence.

Spedding said the crash was an “unspeakable tragedy,” but he maintained that it wasn’t Heil’s fault.

“The evidence is going to show you that the problem is the little boy ran out in the road,” Spedding told jurors Monday.

Did Heil run off the road when he hit 4-year-old?

Marco, his father and his brother waited for several cars to pass before attempting to cross Cooper, Red Corn said during opening arguments.

Marco’s father, Benjamin Shemwell, was making sure his sons stayed next to him off the road when he looked up and saw Heil driving toward them, Red Corn said. Shemwell tried to pull his sons back before Marco was hit.

“He couldn’t find Marco,” Red Corn said. “He looked down the street — Marco had been struck and carried.”

Red Corn said the initial police investigation didn’t indicate that Heil traveled off the road when he hit Marco. But investigators later found a tire mark on Cooper Drive, which they believed was from Heil’s car. It showed the car had gone off the edge of the road, Red Corn said.

Even if Marco had been on the edge of the road, Heil should have had plenty of space to avoid hitting the boy, Red Corn told jurors.

Red Corn said when Heil was interviewed by police after the crash, he thought he had stayed on the road. Heil was asked if it’s possible that he went off the road.

“It’s very possible,” he replied, according to Red Corn.

Spedding told jurors the crash was a “traumatic situation,” which leads to “different interpretations” about what happened.

Defendant drank at frat party prior to crash

Heil admitted to police after he was arrested that he drank two beers at an Alpha Tau Omega tailgate party prior to the UK football game and the crash.

Heil was an ATO pledge at the time. After a couple of hours of sleep, Heil was up at 6 a.m. to help prepare for the party, according to Red Corn. Heil was tasked with keeping a tub of beer full throughout the party, which was busted up by police just before noon that day.

There were believed to be 20 separate 30-packs of beer prepared for that party, Red Corn said in court. Heil told police he drank two beers at that party on Waller Avenue. Then had “a couple more sips of beer” at ATO’s fraternity house, Red Corn said. Heil left the party after it was broken up by police. Another ATO member asked Heil to let him drive Heil’s car.

After going to the ATO house, Heil drove himself and other ATO members to Joella’s Hot Chicken for lunch. He then dropped others off at their residences before turning onto Cooper Drive and hitting Marco.

Red Corn said Heil wouldn’t have been able to responsibly drive a car at his level of intoxication.

Heil’s attorney, Spedding, argued that Heil didn’t show signs of impairment, like slurred speech. He also said videos of officers performing field sobriety tests on Heil would indicate he wasn’t impaired.

Dr. Gregory James Davis, a doctor at UK who testified in court Monday, said there wasn’t a threshold of intoxication that would immediately cause someone to have slurred speech or appear to be obviously impaired. But hand-eye coordination and other abilities crucial to driving a car could still be affected.

Heil faces one to five years in prison if he’s convicted, according to state law. He could also face a fine or community service for his DUI charge, if he’s convicted. His trial, which is scheduled to last four days, is expected to continue Tuesday morning.

This story was originally published October 11, 2021 4:35 PM.

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Jeremy Chisenhall covers breaking news for the Lexington Herald-Leader and Kentucky.com. He joined the paper in 2020, and is originally from Erlanger, Ky.

(this story/news/article has not been edited by PostX News staff and is published from a syndicated feed)




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