Opinion
NO. 2016-CA-001018-MR
06-02-2017
BRADLEY A. TURNER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Dax R. Womack Henderson, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas A. Van De Rostyne Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 15-CR-00145 OPINION
AFFIRMING
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BEFORE: CLAYTON, J. LAMBERT, AND THOMPSON, JUDGES. CLAYTON, JUDGE: Bradley A. Turner appeals from the July 12, 2016 Henderson Circuit Court's Judgment of Conviction. Turner was convicted by a jury on the charge of theft by failure to make required disposition of property under $10,000 and received a sentence of one year's imprisonment. After our review, we affirm.
BACKGROUND
On April 9, 2015, Turner was indicted on the charge of theft by failure to make required disposition of property under $10,000, a Class D Felony, authorized in Kentucky Revised Statutes (KRS) 514.070. The charge was based on Turner's failure to properly modify and return a sniper rifle belonging to Brad Bleakney, and thus, treating the property as his own.
The facts leading up to this indictment commenced in February 2012. At that time, Bleakney contacted Turner, via the Internet, and placed an order for a custom rifle. Turner was the owner of a business name Superior Tactical Solutions ("STS"). When Bleakney ordered the custom rifle, he requested that the rifle be completed within 18 weeks and forwarded a $3,945 deposit to Turner. During the time the rifle was being constructed, he also sent other pieces of equipment, including a US Optics telescopic sight. The value of this equipment was $9,611.85.
After approximately a year, when the rifle had not been completed, Bleakney cancelled the order and requested the return of his equipment and deposit. The rifle and other equipment and the deposit were not returned. In addition, during the time that Turner had the equipment, he claimed that he dropped and damaged the scope. Later, Turner pawned the scope as if it was his own. Turner later explained that he pawned the broken scope and purchased a new one to replace it.
Bleakney filed a civil suit against Turner and received a personal judgment against Turner. However, after the entry of the personal judgment, Turner filed a voluntary petition for Chapter Seven Bankruptcy. On February 10, 2016, Turner and his wife were discharged from a number of debts including Bleakney's judgment. Meanwhile, Bleakney contacted the Henderson County Sheriff's Department in May 2014. Based on Bleakney's accusation, the sheriff's department opened a criminal case. During its investigation, the sheriff's department found the scope at a pawn shop.
The one-day trial was held on June 17, 2016. After hearing the evidence and the arguments, the jury deliberated for 20 minutes and returned a guilty verdict. After instructions regarding sentencing, the jury recommended a sentence of one year for Turner. Turner returned for final sentencing on July 12, 2016, and the trial judge, after considering the statutory factors in KRS 533.010, imposed a sentence conforming to the jury's recommendation.
Turner now appeals the judgment of conviction, and the trial court's denial of his motions for a new trial and for a judgment notwithstanding the verdict. Additional facts will be provided as needed for the analysis.
ANALYSIS
The question before us is whether Turner's conviction on theft by unlawful failure to make required disposition under KRS 514.070 was proper. The statute provides in pertinent part that:
(1) A person is guilty of theft by failure to make required disposition of property received when:KRS 514.070(1). In the case at hand, the jury was presented with evidence that Turner obtained Bleakney's rifle, agreed to modify it, accepted money and equipment for the modification, pawned some of the equipment, and never returned the rifle or the money and the equipment. The jury, as fact-finder, heard this evidence, and found Turner guilty.
(a) He obtains property upon agreement or subject to a known legal obligation to make specified payment or other disposition whether from such property or its proceeds or from his own property to be reserved in equivalent amount; and
(b) He intentionally deals with the property as his own and fails to make the required payment or disposition.
The six errors claimed by Turner, which allegedly necessitate, reversing the conviction are as follows: 1) the trial court improperly instructed the jury; 2) trial court erred by denying Turner's motions, which included, to dismiss the indictment, for a directed verdict, and for a judgment notwithstanding the verdict; 3) the trial court was precluded from hearing the criminal case since Bleakney had already elected a civil remedy; 4) the trial court permitted the Commonwealth to interject facts not in the record; 5) the trial court erred by not granting Turner probation; and, 6) the cumulative error mandates a reversal. We begin our assessment of Turner's argument of error with the issue of jury instructions.
Jury Instructions
Turner contends that the jury instructions did not inform the jury of his affirmative defense to the charged offense. The affirmative defense is authorized under KRS 514.020(1). It states, that:
(1) It is a defense to prosecution for theft that the actor:KRS 514.020(1). According to Turner, he met all three prongs of this defense and it was not provided in the jury instructions.
(a) Was unaware that the property or service was that of another; or
(b) Acted under a claim of right to the property or service involved or a claim that he had a right to acquire or dispose of it as he did; or
(c) Took property exposed for sale, intending to purchase and pay for it promptly, or reasonably believing that the owner, if present, would have consented.
Whether Turner was entitled to this defense is debatable. First, he knew the rifle belonged to Bleakney; second, he never established any evidence that he had the right to dispose of the rifle or its parts; and finally, the only property he sold was the damaged scope without establishing either knowledge or consent on the part of Bleakney.
An accused is entitled to have the jury instructed on a defense where it "is reasonably deducible from the evidence." Fredline v. Commonwealth, 241 S.W.3d 793, 797 (Ky. 2007). And an instruction is proper where there is "some evidence justifying a reasonable inference of the existence of a defense." Grimes v. McAnulty, 957 S.W.2d 223, 226 (Ky. 1997).
Regardless of the efficacy of the instruction, the Commonwealth asserts that the "claim of right" defense, as found in KRS 514.020(1) was included in the jury instructions. Interestingly, when this affirmative defense is invoked by defendants, they are admitting to the charged act but seeking to justify the act because of a lack of criminal intent. Howard v. Commonwealth, 608 S.W.2d 62, 63 (Ky. App. 1980)(citations omitted).
When Turner mentioned his entitlement to an instruction on this defense at trial, the judge pointed out the inclusion of the claim of right defense in Instruction Number Two, Section D, which says "the defendant did so with the intention to deprive Brad Bleakney of the rifle components or the Remington 700 rifle and he was not acting under a claim of right to them." (Emphasis added). Furthermore, Instruction 3 states "[i]t is a defense to prosecution for theft that the actor acted under a claim of right to the property or service involved or a claim that he had the right to acquire or dispose of it as he did." (Emphasis added). Therefore, the trial court included the defense in the instructions, and there was no error.
Failure to grant Turner's motions
Turner next argues that the trial court erred when it failed to grant a number of motions. Initially, Turner claims that the trial court erred when it did not grant his motion to dismiss the indictment. Nonetheless, other than proffering the indictment should have been dismissed, he provides no substantive arguments to support this position.
Rulings on motions to dismiss indictments are generally subject to an abuse of discretion standard of review. Commonwealth v. Deloney, 20 S.W.3d 471, 474 (Ky. 2000). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
The Commonwealth points out that, in general, the authority to dismiss an indictment is vested in the prosecution. Indeed, as stated in Commonwealth v. Grider, 390 S.W.3d 803, 817-18 (Ky. App. 2012), "subject to rare exceptions usually related to a defendant's claim of a denial of the right to a speedy trial, the trial judge has no authority, absent consent of the Commonwealth's attorney, to dismiss, amend, or file away before trial a prosecution based on a good indictment." In the case at hand, Turner provided no substantive reason for arguing that the indictment should have been dismissed; and hence, the trial court did not err in denying the motion to dismiss the indictment.
Next, we address the trial court's alleged error in denying Turner's motions for a directed verdict, judgment notwithstanding the verdict, and a new trial. First, relying on McDaniel v. Commonwealth, 415 S.W.3d 643 (Ky. 2013), Turner argues that the Commonwealth is required to prove each element of a charge, and if it does not do so, a directed verdict must be granted. While McDaniel does note that according to the Constitution, the government is required to prove each element of the charged offense beyond a reasonable doubt, it does not connect this concept to a mandate for a directed verdict. Id. at 658.
The crux of Turner's argument is based on his position that the matter does not fall under the auspices of KRS 514.070 because it was merely civil not criminal in nature. Hence, he opines that the aforementioned motions should have been granted. His arguments supporting that these motions should have been dismissed are interlaced and flow from the same contention, which is the matter was not criminal. To support his argument, Turner relies on two Kentucky cases - Commonwealth v. Jeter, 590 S.W.2d 346 (Ky. 1979), and Commonwealth v. Perry, 219 S.W.3d 720 (Ky. 2007).
In Jeter, customers of an appliance store paid for appliances, which were never delivered. The trial court dismissed the case. Thereafter, the Commonwealth brought an action for certification on the question of law as to whether KRS 514.070 includes the course of conduct where a seller accepts money for the purchase of merchandise and refuses to deliver the property as promised. Id. at 346. The Court held that this fact pattern does not fall within the scope of KRS 514.070. It stated:
[I]t is not the purpose of this statute to impose a criminal sanction on the relationship of debtor and creditor. To constitute an offense there must be a breach of trust, growing out of a contract or confidential relation.Id. at 347. The court summed up its holding:
KRS 514.070 does not proscribe the type of transaction whereby a seller accepts money for the purchase of merchandise and then refuses to deliver the property as promised. The statute was instead enacted to penalize the misapplication of property received from another.Id. at 347-48.
But unlike the facts in Jeter, Turner did breach Bleakney's trust and misapply Bleakney's property. Therefore, this fact pattern is not merely a debtor-creditor relationship but one with a fiduciary/agent component in which the defendant misapplied the property he received from the victim. Hence, Jeter is not persuasive or applicable here; and, it does not abrogate the charge found in KRS 514.070.
Regarding the facts in Perry, the trial court had granted a directed verdict in a case where defendant was charged with theft by failure to make a required disposition of property. Commonwealth v. Perry, 219 S.W.3d 720 (Ky. 2007). Turner maintains that it is similar to the facts of this case. However, even though the trial court in Perry granted a directed verdict, the Kentucky Supreme Court, in essence, reversed the trial court and held that KRS 514.070 did apply. Id.
In Perry, the Commonwealth appealed to certify the question as to whether the offense of theft by failure to make required disposition of property covered a situation in which the victim gives money to the defendant with the agreement that the defendant will purchase merchandise from a third party source and give it to the victim, and then the defendant fails to purchase the item or return the money. Id.
The Perry holding nullified the effect of the directed verdict in the underlying matter. Moreover, the Court noted that KRS 514.070 was "enacted to penalize the misapplication of property received from another." Id. at 721(citing Jeter, 590 S.W.2d at 348). Here, Turner met each required element under the statute: he obtained the equipment and money to build a rifle; he "intentionally dealt with the property as his own" when he pawned the scope; and, he "fail[ed] to build a custom-made rifle, including a telescopic sight and other components, or return the money and the equipment. Contrary to Turner's legal reasoning and misstatement of the cited cases, KRS 514.070 applies to the matter at hand. Consequently, the trial court's denial of the motions for a directed verdict, judgment notwithstanding the verdict, and for a new trial were proper.
Civil remedy precludes criminal case
Turner maintains that when Bleakney sued Turner civilly, he was precluded from seeking a criminal action based on the "election of remedies" doctrine. Owens v. University of Kentucky, 486 S.W.3d 266 (Ky. 2016). While Turner cites the language explaining the "election of remedies" doctrine in Owen, he does so without explaining its impact on the case at bar. Indeed, this case is not pertinent since Owens involved a choice between the administrative system or a court of law. Id.
The Owens' decision is not on point regarding whether certain matters can be considered both civilly and criminally. As a matter of fact, in Kentucky, injured parties have long be able to pursue relief through both criminal and civil justice systems. Among the significant differences that exist between the two court systems are both the differences in the burden of proof and also the differences in the "victim." First, in a criminal case, conviction requires "proof beyond a reasonable doubt." In a civil case, liability must be proven by a preponderance of the evidence. Second, in a criminal case the Commonwealth controls the proceedings and the victim acts as a witness for the prosecution; whereas, in a civil case, the victim controls such decisions including whether to sue, accept a settlement offer, or go to trial.
Additionally, Gregory v. Commonwealth, 610 S.W.2d 598, 600 (Ky. 1980) states "[a] judgment of a civil court is not binding on a court trying a criminal case, and a civil judgment is not admissible in a subsequent criminal prosecution where the judgment is offered to prove facts adjudicated in the civil proceedings, although exactly the same questions are in dispute in both cases." This case, too, highlights that matter may be considered civilly and criminally.
As noted, the rationale behind permitting cases to be considered civilly and criminally includes that "the parties are not the same" and that there are "different rules as to the weight of evidence, or quantum of proof necessary, to prevail." 47 Am.Jur.2d Judgments § 654 (2013). In point of fact, the case relied so heavily upon by Turner - Perry v. Commonwealth - indicates that the victim in that matter had a civil judgment in her favor from the small claims court and was still involved in a criminal prosecution.
The trial court did not commit error in allowing this criminal action to go forward even though the matter had also been considered civilly.
Interjections by Commonwealth of Facts Not in the Record
During the trial, Turner made several motions for mistrial. We will address the primary motion for a mistrial, which was discussed in his brief. Therein, Turner suggests that the trial court erred when it denied the motion for a mistrial based on the Commonwealth's questioning of him regarding the number of creditors in his bankruptcy proceeding. The trial court denied the motion by noting that Turner had "opened the door" to the information. Turner categorically denies that he opened the door. Nonetheless, Turner's characterization of the argument as the Commonwealth's introduction of bankruptcy evidence is patently incorrect.
A review of the trial shows that Turner testified in his own defense during the guilt phase of the trial. On direct examination, he discussed his negotiations with Bleakney regarding the rifle. He wanted Bleakney to sign a non-disclosure agreement so that he would not criticize Turner's business on the Internet. During cross-examination, questions about the alleged negotiations, led to Turner's responses that Bleakney made negative posts about his business on the Internet. Turner claimed that these posts harmed his business and said they ultimately caused him to file bankruptcy. After he brought up the bankruptcy, Turner answered other questions about the bankruptcy including that he had numerous creditors and owed them approximately $500,000. Thus, it was Turner who originally mentioned the bankruptcy.
"The standard of review for a trial court's evidentiary rulings is abuse of discretion. . . . The test for abuse of discretion is 'whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" McDaniel v. Commonwealth, 415 S.W.3d 643, 655 (Ky. 2013) (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575 (Ky. 2000) and quoting Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999)).
Turner relies on Coates v. Commonwealth, 469 S.W.2d 346 (Ky. 1971) to support his contention that a prosecutor is limited from interjecting any matters outside the record in the case. Coates is distinguishable. The defendant in Coates, was tried for possession of marijuana. During cross-examination of the defendant and again during closing argument, the Commonwealth's attorney implied that the defendant had been trafficking illicit drugs into the Reformatory. However, in that matter, the Commonwealth never introduced any evidence to support its implications. Coates held that the Commonwealth interjected a "false issue" into the case "which was highly prejudicial." Id. at 348. That is not the case here since Turner brought up bankruptcy and it was not a false issue. Further, although Turner labeled the facts prejudicial, he did not establish or even argue that they were prejudicial. Coates and this matter are not based on similar facts.
The trial court properly held that the Commonwealth was entitled to cross-examine Turner about the details of the bankruptcy as related to his credibility and because he raised the issue himself during the cross examination. According to Kentucky Rule of Evidence (KRE) 607, "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." Further, as noted by LaMastus v. Commonwealth, 878 S.W.2d 32, 35 (Ky. App. 1994), when a party chooses to testify on his own behalf, he becomes subject to the same rules for impeachment and credibility as any other witness. Thus, the Commonwealth was entitled to impeach Turner on the matters he testified about particularly since the questions were directly related to his credibility.
Consequently, we hold that the trial court did not abuse its discretion in denying the motion for mistrial based on Turner's response to cross examination questions regarding bankruptcy, which was, in the case at bar, a true fact.
Denial of probation
Turner also contends that he should have been granted probation since he had no criminal history and, according to him, it was unlikely that he would re-offend. Without any explanation, Turner cites Turner v. Commonwealth, 914 S.W.2d 343 (Ky. 1996) and KRS 218A.010. Nonetheless, Turner is inapposite because the Court determined that the trial court did not abuse its discretion in denying probation. And KRS 218A.010 is only pertinent to individuals convicted of possession of controlled substances and other related offenses.
A trial court has substantial discretion to grant probation based on the statutory criteria set out in KRS 533.010(2). Boone v. Commonwealth, 155 S.W.3d 727, 732 (Ky. App. 2004). According to this statute, before imposing a sentence of imprisonment, the court shall consider the statutory factors in KRS 533.010(2). Here, the trial court had a pre-sentence investigation report prepared and held a sentencing hearing. The trial court recited these factors in the written judgment. Therefore, we conclude that the trial court did not abuse its discretion in denying probation.
Cumulative Error
Citing James v. Commonwealth, 197 Ky. 577, 247 S.W. 945, 948 (Ky. 1923), Turner gives us the doctrine of cumulative error. He then buttresses this citation with another citation - Jones v. Commonwealth, 191 Ky. 485, 231 S.W. 31, 35 (Ky. 1921). Again, Turner, other than noting the doctrine of cumulative error, provides no analysis.
The doctrine/rule of cumulative error is applicable when an error is insufficient on its own to warrant reversal, but multiple errors have occurred, and the multiple errors are egregious enough that the cumulative effect of the errors renders the trial fundamentally unfair. In such a case, cumulative error may necessitate reversal. Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). In the case at bar, since the individual allegations of error have no merit, they can have no cumulative value. McQueen v. Commonwealth, 721 S.W.2d 694, 701 (Ky. 1986). Thus, the doctrine of cumulative errors is not implicated in this matter.
CONCLUSION
For the foregoing reasons, the decision of the Henderson Circuit Court is affirmed.
ALL CONCUR BRIEF FOR APPELLANT: Dax R. Womack
Henderson, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Thomas A. Van De Rostyne
Frankfort, Kentucky