MARIO ANDRETTI REED v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 9, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-000151-MR
MARIO ANDRETTI REED
v.
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
ACTION NO. 96-CR-00139
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Mario Andretti Reed (Reed) appeals from the
judgment of the Hopkins Circuit Court entered on January 8, 1997,
which convicted Reed of the unauthorized use of a motor vehicle, in
violation of Kentucky Revised Statutes (KRS) 514.100 for which Reed
received a twelve-month jail sentence.
Reed argues that the trial
court erred in denying his motions for a directed verdict.
We
affirm.
Reed was indicted on one count of robbery in the first
degree, one count of theft by unlawful taking and one count of
unlawful transaction with a minor in the second degree.
The case
went to a jury trial in November 1996.
Crystal Cruce (Cruce) testified that on the evening of
June 30, 1996, she drove to Evansville, Indiana to pickup Reed to
take him to his mother’s house in Madisonville, Kentucky.
and Reed were dating at that time.
Cruce
Cruce testified that on the
drive to Madisonville, Reed told her that he was going to rob the
Kentucky Fried Chicken store (KFC) which was only a five-minute
walk from his mother's house. Cruce testified that Reed was acting
strangely and when Reed showed her a handgun she became frightened.
When they arrived at his mother’s house, Reed and Cruce argued.
Cruce went into the house and Reed left the house on foot.
At 9:47 p.m. that evening, the KFC was robbed by a man
three KFC employees identified as Reed.
Cruce testified that
fifteen to twenty minutes after Reed left the house on foot, she
and Reed’s mother, Linda Ann Lester (Lester), heard a noise, looked
outside and discovered that Cruce's car was missing.
Lester drove
Cruce home around 4:30 a.m. the following morning.
On July 1,
1996, Cruce's sister reported to the police that Cruce’s car had
been stolen at approximately 10:00 p.m. the previous evening.
Cruce
testified
that
Reed
frequently
used
her
permission, and previously had always returned it.
car
with
her
She claimed
that Reed did not ask for and she did not give him permission to
take her car on June 30, 1996.
Lester testified that Reed left her residence driving
Cruce's car.
Lester stated that she found Reed in Evansville,
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Indiana the next day and that he gave her the keys to Cruce's car
and told her that the car was located in the driveway of a
particular house in Providence, Kentucky.
Lester contacted the
police and told them what Reed had told her.
The police recovered
Cruce's car from the location Reed had given to Lester.
Shelley Hathaway (Hathaway) testified that she met Reed
for the first time late in the evening on June 30 and they spent
the remainder of the evening smoking crack cocaine.
She testified
that Reed parked a car and left it in the same location Reed had
described to Lester.
Hathaway could not describe the car.
Reed twice moved the trial court for a directed verdict
of acquittal.
Both motions were denied.
The jury was unable to
reach a verdict on the robbery in the first degree count and the
trial court declared a mistrial as to this count.
The unlawful
transaction with a minor count was dismissed by the trial court
upon the request of the Commonwealth.
The jury acquitted Reed of
the theft by unlawful taking count, but convicted him of the
unauthorized use of a motor vehicle.
This appeal followed.
Reed argues that the trial court erred in refusing to
enter a directed verdict of acquittal.
He contends that the
Commonwealth failed to prove that he took the car, who owned the
car, and whether or not the vehicle that was recovered was the same
vehicle that was reported missing.
The standard of review for denial of a motion for a
directed verdict based on insufficient evidence is set forth in
Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991), as follows:
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“On motion for directed verdict, the trial
court must draw all fair and reasonable
inferences from the evidence in favor of the
Commonwealth. If the evidence is sufficient
to induce a reasonable juror to believe beyond
a reasonable doubt that the defendant is
guilty, a directed verdict should not be
given.
For the purpose of ruling on the
motion, the trial court must assume that the
evidence for the Commonwealth is true, but
reserving to the jury questions as to the
credibility and weight to be given to such
testimony.”
Id. at 187 (citation omitted).
KRS 514.100(1) defines the unauthorized use of a vehicle
as follows:
A person is guilty of the unauthorized use
of an automobile or other propelled vehicle
when he knowingly operates, exercises control
over, or otherwise uses such vehicle without
consent of the owner or person having legal
possession thereof.
Cruce testified that on June 30, she did not give Reed
permission to use her car. Lester testified that Reed took Cruce's
car.
She further testified that Reed gave her the keys to Cruce's
car and explained where the car was located.
Hathaway testified
that late in the evening of June 30, Reed parked a car in that same
location he described to Lester.
The police found the car parked
in the same driveway of the same house in Providence which Reed had
described to Lester and Hathaway described to the trial court.
This
certainly
constitutes
sufficient
evidence
to
induce
a
reasonable juror to believe beyond a reasonable doubt that on June
30, 1996, Reed used Cruce's car without her consent.
As to Reed’s contention that the Commonwealth failed to
prove the ownership of the car, the statute requires that the
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defendant must knowingly operate the vehicle without the consent of
the owner or the person having legal possession thereof.
testified that "they" bought the car for her.
Cruce
In the context of
her testimony, “they” refers to her sister, who was her legal
guardian, and presumably her sister's husband.
that she drove the car wherever she wanted.
Cruce testified
Based upon these
facts, a reasonable juror could conclude, at a minimum, that Cruce
had legal possession of the car.
Thus, proof of ownership of the
car was not required to convict Reed since he could also have been
convicted based upon not having gained the consent of Cruce, who
had legal possession of the car.
There was sufficient evidence to convict Reed of the
unauthorized use of a vehicle.
The trial court properly denied
Reed's motions for a directed verdict. The judgment of the Hopkins
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Ann T. Eblen
Louisville, KY
Hon. A. B. Chandler III
Attorney General
Hon. William L. Daniel II
Assistant Attorney General
Frankfort, KY
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