Opinion
NO. 2014-CA-001826-MR
12-22-2016
DORETHA WOODS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 12-CR-00296 OPINION
REVERSING AND REMANDING
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BEFORE: ACREE, STUMBO, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Doretha Woods brings this appeal from a Final Judgment of the Campbell Circuit Court entered October 21, 2014, upon a jury verdict finding Woods guilty of theft by deception over $500 and sentencing her to twenty-three months imprisonment. We reverse and remand.
In May 2012, Woods was indicted by a Campbell County Grand Jury upon the offense of theft by deception over $500 (Kentucky Revised Statutes (KRS) 514.040). Woods had written a check for $550 to her landlord for rent and late charges on November 5, 2011; however, the check was written on a checking account that had been closed by the bank due to insufficient funds. A jury trial ensued, and Woods was found guilty of theft by deception over $500. By judgment entered October 21, 2014, Woods was sentenced to a total of twenty-three months imprisonment. This appeal follows.
Woods contends that the circuit court erred by denying her motion for a directed verdict of acquittal upon the offense of theft by deception over $500. A directed verdict is proper where viewing the evidence most favorable to the Commonwealth, a jury could reasonably find that defendant was not guilty of the indicted offense. Lee v. Tucker, 365 S.W.2d 849 (Ky. 1963). Our review proceeds accordingly.
In particular, Woods argues that the Commonwealth failed to prove beyond a reasonable doubt that she obtained property of another with the necessary intent to deceive as required to be convicted of theft by deception per KRS 514.040(1). The Commonwealth has conceded this issue in its two-page brief, stating that Woods was entitled to a directed verdict of acquittal. Notwithstanding this concession, we are duty bound to review this case on the merits, given a judgment upon a jury verdict has been granted. For the following reasons, we believe a directed verdict of acquittal should have been granted.
Doretha Woods' brief was filed on May 26, 2015. The Commonwealth of Kentucky's brief was due on July 25, 2015. Kentucky Rules of Civil Procedure 76.12(2)(b). The Commonwealth filed two motions for extension to file its brief, due to conflicts in counsel's schedule. The Commonwealth's two-page brief was filed on November 10, 2015, almost four months after the original due date. The necessity for a delay of this length by the Commonwealth to file a two-page brief, based upon the facts of this case, is of significant concern to this Court. See Caldwell v. Com., 157 S.W.3d 215 (Ky. App. 2004) (dis. rev. denied Jan. 2005).
The offense of theft by deception is codified in KRS 514.040, which provides, in part:
(1) A person is guilty of theft by deception when the person obtains property or services of another by deception with intent to deprive the person thereof. A person deceives when the person intentionally:
. . . .
(e) Issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee.
(4) For purposes of subsection (1) of this section, a maker of a check or similar sight order for the payment of money is presumed to know that the check or order, other than a postdated check or order, would not be paid, if:
The term "obtain" as utilized in KRS 514.010 is defined as:(a) The maker had no account with the drawee at the time the check or order was issued[.]
(4) "Obtain" means:
To be guilty of theft by deception, it must be demonstrated that the defendant obtained "property or services of another by deception with intent to deprive the person thereof." Allen v. Com., 395 S.W.3d 451, 457 (Ky. 2013). And, the "intent of the person at the time property was obtained governs instead of at the time the check was given." KRS 514.040 (1974 Official Commentary); see also, Rice v. Com., 621 S.W.2d 911 (Ky. 1981).(a) In relation to property, to bring about a transfer or purported transfer from another person of a legal interest in the property, whether to the obtainer or another[.]
Kentucky Revised Statutes 500.100 provides that "[t]he commentary accompanying this code may be used as an aid in construing the provisions of this code." --------
In this case, Woods moved into and obtained possession of the leased premises on October 18, 2011. Before obtaining possession of the leased premises, Woods paid her landlord $1,000 in cash - $700 for a security deposit and $300 of prorated rent for the remaining days she possessed the leased premises for the month of October. It was not until November 5, some eighteen days after obtaining possession of the lease premises, that Woods gave the landlord the $550 cold check for the November rent, which represented $500 in monthly rent and $50 in late charges.
Under applicable Kentucky law, Woods obtained the leasehold or her interest in the leased premises upon commencement of her tenancy. See Pikeville Oil & Tire Co. v. Deavors, 320 S.W.2d 782 (Ky. 1959). The undisputed facts reveal that Woods took possession of the leased premises as a tenant on October 18 and entered into the lease agreement concomitantly therewith. Thus, Woods "obtained" her interest as a tenant in the leased property effective October 18; conversely, the $550 cold check was written on November 5. Considering these facts, Woods did not "obtain" an interest in the leased property by writing the $550 cold check as required by KRS 514.040(1)(e) to be guilty of theft by deception. There is clearly lacking the requisite intent for a crime to have been committed under KRS 514.040 at the time the check was tendered on November 5. Had there been simultaneous or contemporaneous possession of the premises upon the execution of the lease in exchange for the bad check, the result of this case might be different. Martin v. Com., 821 S.W.2d 95 (Ky. App. 1991). Accordingly, we conclude that the circuit court erred by denying Woods' motion for a directed verdict of acquittal upon the offense of theft by deception over $500.
For the forgoing reasons, the judgment entered by the Campbell Circuit Court upon a jury verdict is reversed and remanded for proceedings consistent with this Opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky