LARRY BRYAN FRALEY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
August 28, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 97-CA-0987-MR
LARRY BRYAN FRALEY
v.
APPELLANT
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE STEPHEN FRAZIER, JUDGE
CRIMINAL ACTION NO. 96-CR-000064
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * *
BEFORE:
BUCKINGHAM, EMBERTON and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Larry Bryan Farley (Fraley) appeals from a
final judgment and sentence of imprisonment entered by the
Johnson Circuit Court on April 14, 1997, following a jury trial
in which he was found guilty of theft by failure to make required
disposition.
We affirm.
This case arises from the attempt of John George
Reffett (Reffett) to prearrange his funeral.
Fraley testified at
trial that Reffett, who spent a great deal of time at a funeral
home owned by Fraley, told him he wanted to pre-arrange his
funeral.
Fraley told Reffett he was not licensed to handle
prearranged funerals.
At that point Reffett allegedly became
somewhat belligerent and told Fraley that no one was going to
tell him what he could do with his money.
When Fraley advised
Reffett to inform his family that he wanted Fraley to handle his
funeral, Reffett allegedly stated "I don't want my damn family to
have nothing to do with it."
Fraley stated that Reffett showed him what he wanted to
be buried in, and then told him he didn't have a lot of money.
Reffett also told Fraley he had some type of funeral benefits
available from the United Mine Workers of America (UMWA).
The
total cost of what Reffett wanted was $4,320, and Reffett was to
be responsible for $1,820 of that amount.
Reffett indicated that
he would come in every month and make payments.
Fraley told
Reffett he didn't want him to do that, at which point Reffett
allegedly became belligerent again and said "I'll do what I damn
well please."
When Fraley instructed him to put the money in the
bank, Reffett allegedly stated "If I had wanted it in a damn
bank, I would put it in the bank."
At that point Fraley testified that he contacted Family
Federal Bank about the possibility of setting up a pre-need
funeral account.
The bank told him that they didn't handle that
type of account, and he relayed that information to Reffett, who
allegedly responded "Well, I'll just leave my money here."
Fraley told Reffett that they needed to put their
agreement in writing and have it witnessed.
Fraley also told
Reffett that one of his children needed to know about the
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arrangements, at which point Reffett allegedly stated "Well, be
sure you don't tell George, Jr. none of my gd business."
Reffett
finally agreed to put the name of one his daughters on the
contract.
According to the terms of the pre-arranged funeral
contract (the contract) between Fraley and Reffett, Eva Woodcock,
who was Raffett's daughter, or Edna Price were to be notified
upon Reffett's death.
The contract provided "burial Fund to be
paid to Funeral Home at Time of Death Balance [sic] $1,810.00 to
be paid $200.00 amonth [sic] for 9 months."
The contract further
provided "In the event that FRALEY AND SON FUNERAL HOME should
cease operate a funeral service, all monies paid toward this
service will be refunded in full."
The contract was signed by
Reffett and Fraley and witnessed by Edna Price.
Fraley testified that he told all of his employees to
make sure they gave Reffett a receipt every time he brought in
money showing his balance.
According to Fraley, he told Reffett
he would put the money in an envelope and keep it for him.
Before Reffett made his last payment, Fraley testified
that he had a confrontation with Reffett's son, George.
Fraley
stated that George essentially cornered him one day and asked
"How much money has the old s-o-b paid you on his funeral?"
When
Fraley informed George that Reffett told him not to discuss his
arrangements with him, George allegedly stated "I just don't want
to get stuck with the old s-o-b's funeral bill."
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Fraley testified that following his confrontation with
George, he told Reffett he didn't want to get in the middle of a
family problem.
He
stated that he gave Reffett his money back
and told him he no longer wished to be responsible for it.
At
that point, Reffett allegedly became angry and told him their
friendship was over.
He stated that this occurred in late 1992
or early 1993.
Fraley testified that he had no further contact with
Reffett.
George called him once in June of 1994 and again asked
how much Reffett had paid him.
to ask Reffett.
Fraley told George he would have
Fraley told George he was no longer in the
funeral business, but that he could handle the arrangements
through another funeral home.
Reffett died in 1996.
Prior to his death, Fraley
testified that he was contacted by Pauline Tackett, Reffett's
former daughter-in-law.
Tackett allegedly told him that Reffett
wasn't doing well, and asked about Reffett's funeral
arrangements.
Fraley stated that he told her he had given
Reffett's money back to him and told her about his falling out
with Reffett.
Fraley got Eva Woodcock's number from Tackett and
called her and told her what happened.
Fraley stated that Clifford Gullett, Randall Hayes, and
Mary Branham were present when he refunded Reffett's money.
Fraley stated that at the time he and Reffett entered into the
contract he had applied for a pre-need license but never received
one and that he told Reffett he didn't have a pre-need license.
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On cross-examination Fraley testified that the contract
went for longer than nine months because on some months Reffett
didn't make a full payment.
He testified that he tried to set up
a bank account to handle the transaction, but was unable to do so
and that Reffett was aware of this.
Fraley admitted that money
for pre-need funeral contracts is suppose to be kept in a trust
fund.
Fraley testified that he returned Reffett's money in 1992,
not long after Reffett made his last payment.
He did not get a
receipt when he returned it because due to Reffett's behavior he
"thought it was best to leave well enough alone[.]"
He stated
that Reffett drove himself to the funeral home the day he
returned his money.
Fraley testified that he spoke with Eva Woodcock
several weeks after his initial contact with her.
She told him
that Reffett was missing some money they couldn't account for.
He told her "If you think that I have cheated your father or
cheated your family, you tell me exactly how much money that it
was and I'll be happy to pay you because I don't want no
problems."
He further told her he didn't want to get into
trouble with the Attorney General's Office.
Woodcock allegedly
replied "Well, we can't take your money, Mr. Fraley."
Jerry Robinson, who is employed in the Consumer
Protection Division of the Attorney General's Office, testified
that she is the program coordinator for the cemetery and funeral
home section.
She stated that Fraley filled out an application
to obtain a pre-need license, but the application was filed
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incomplete, was returned to Fraley, and was never approved.
She
also testified that if a funeral home goes out of business an
existing pre-need contract would still be valid and any license
would remain intact.
She stated that the closing of a funeral
home is not addressed in the applicable statutes.
Robert Hughes, former Chief Inspector for the Consumer
Protection Division of the Attorney General's Office, testified
that he received a complaint regarding Reffett's contract with
Fraley's funeral home in April, 1996.
He contacted several banks
in the area and was unable to find any account established for
Reffett through Fraley and/or his funeral home.
Hughes testified
that several of the receipts given to Reffett showed that the
money was deposited with Family Federal Savings.
He also
obtained Reffett's driving record from the Department of
Transportation which showed that Reffett's license was
surrendered on August 24, 1992, and never renewed.
George Reffett (George) testified that the signature on
the contract was his father's, and acknowledged that Reffett
received receipts in return for the payments he made.
He stated
that Reffett was buried by another funeral home, and that there
was no money available from the contract between Reffett and
Fraley.
Reffett's children paid the funeral expenses in full and
were reimbursed by the UMWA.
George testified that he did not
have a good relationship with his father, he never accompanied
Reffett to Fraley's funeral home, and he had no personal
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knowledge as to whether Reffett gave money to Fraley or whether
Fraley returned the money.
Edna Price (Price), a good friend of Fraley's,
testified that she helped him manage his affairs.
She
acknowledged that she signed the contract as a witness.
Price
stated that she had a lock box in her house in which she kept
documents for Reffett, including his copy of the contract and the
receipts.
It was her understanding that the money paid by
Reffett was to be kept at First Federal.
She eventually gave all
of the documents to George following Reffett's death.
According
to Price, she was with Reffett on several occasions when he made
payments.
However, she further testified that if Fraley ever
returned the money to Reffett he never said anything to her about
it.
She testified that she handled Reffett's money and she would
have known if he would have ever received $1,800 in cash.
Eva Woodcock (Woodcock) testified that she was aware of
the contract between Reffett and Fraley, and stated that Reffett
paid what was due under the contract in full.
that her father died on April 2, 1996.
Woodcock stated
Fraley called her on
March 31, 1996, and during this conversation told her that he had
given the money back to Reffett.
April 20, 1996.
She also spoke with Fraley on
Woodcock testified that on that date he offered
to refund the money, but she told him she could not take his
money.
She has no personal knowledge as to whether Fraley
returned the money to Reffett.
Fraley told her he did not get a
receipt from Reffett when he returned the money.
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Woodcock also
testified that he told her he wanted to pay the money back
because he didn't want any more problems with the Attorney
General's Office.
Pauline Tackett (Tackett) testified that when she
called Fraley to ask who was handling his pre-paid funerals he
told her he had refunded Reffett's money.
Tackett also testified
that Woodcock told her that Reffett told her that the money paid
to Fraley was in a bank under Woodcock and Fraley's name.
According to Tackett, when she told Fraley that it was her
understanding that the money was in a bank, Fraley told her that
he kept the money in a drawer.
John Childers, a funeral director at Preston Funeral
Home, testified that he handled Reffett's funeral.
He stated
that Reffett's children paid for the funeral, and that he never
received any money from a pre-need funeral contract.
Clifford Gullett (Gullett) testified that he was part
of the regular crowd that kept company at Fraley's funeral home.
He stated that he saw Reffett give money to Fraley for payment of
his burial expenses.
Gullett further testified that one day
Fraley handed Reffett an envelope and said "Here's your money
back."
Reffett took the envelope and left.
Mary Branham testified that she worked at the funeral
home in 1993.
She stated she came into work one morning and
Fraley was upset about his arrangement with Reffett and the
confrontation with Reffett's son.
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Fraley indicated to her that
he had given the money back to Reffett.
She did not actually see
Fraley give Reffett his money back.
The jury found Fraley guilty of the charge against him.
Fraley was sentenced to one year in prison.
This appeal
followed.
Fraley argues that the trial court erred in allowing
the introduction of hearsay testimony.
Fraley's complaint
centers on Hughes' testimony concerning what he learned from the
Department of Transportation and that Reffett's family was under
the impression that he was to receive $2,500.
Fraley also points
to the trial court allowing Tackett to testify as to what
Woodcock said her father said about the money.
Under Kentucky Rules of Criminal Procedure (RCr) 9.24,
any error in the admission or exclusion of evidence which does
not affect the substantial rights of the defendant is deemed to
be harmless and, as such, is not grounds for granting a new trial
or setting aside a verdict.
If there is no reasonable
possibility that the outcome of the case would have been any
different absent admission of the questioned evidence, the error
is harmless.
Renfro v. Commonwealth, Ky., 893 S.W.2d 795, 797
(1995).
On appeal, Fraley contends that he is entitled to
relief because the hearsay testimony was inadmissible.
He makes
no claim that his substantial rights were adversely affected, nor
does he make any claim that he was unduly prejudiced by its
admission.
Furthermore, we have reviewed the trial transcript in
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this case and are not persuaded that a different verdict would
have been reached in the absence of the testimony.
Therefore,
even if the trial court did err in admitting the questioned
testimony, the error was harmless and furnishes no basis for
relief on appeal.
Fraley also contends that the trial court erred in
granting a directed verdict on the ground that the evidence did
not establish that he committed a criminal act.
Fraley maintains
that the Commonwealth failed to prove criminal intent on his part
or that he had committed a criminal act under the charging
statute.
We note that the standard of review of a denial of a
motion for directed verdict is "if under the evidence as a whole,
it would be clearly unreasonable for a jury to find guilt."
Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991).
Under
KRS 514.070, a person is guilty of theft by failure to make
required disposition of property when:
(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.
Again, we have reviewed the transcript of the trial and find that
it was not clearly unreasonable for the jury to find Fraley
guilty.
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We agree with Fraley that the offense requires a breach
of trust stemming from a contractual relationship.
v. Jeter, Ky., 590 S.W.2d 346, 347 (1979).
Commonwealth
As set forth in
Jeter, “The commentary to KRS 514.070 explains ‘[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 relationship.’” 590 S.W.2d at 347.
The trial court
found, and we agree, that "there is ample evidence to show the
existence of a contract" between Reffett and Fraley.
Additionally, there was sufficient evidence presented at trial
there was “a breach of trust, growing out of a contract or
confidential relationship.”
Thus, the trial court did not err in
refusing to grant a directed verdict in Fraley's favor.
Having considered the parties' arguments on appeal, the
judgment of the Johnson Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul L. Pack
Paintsville, KY
A. B. Chandler, III
Attorney General
Kent T. Young
Assistant Attorney General
Frankfort, KY
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