THOMAS L. WILSON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
JANUARY 5, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002247-MR
THOMAS L. WILSON
v.
APPELLANT
APPEAL FROM BRECKINRIDGE CIRCUIT COURT
HONORABLE SAM H. MONARCH, JUDGE
ACTION NO. 04-CR-00108
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART
AND
REVERSING IN PART
** ** ** ** **
BEFORE:
JOHNSON1 AND TAYLOR, JUDGES; BUCKINGHAM,2 SENIOR JUDGE.
JOHNSON, JUDGE:
Thomas L. Wilson has appealed from a final
judgment and sentence of the Breckinridge Circuit Court entered
on October 6, 2005, following a jury verdict finding him guilty
and recommending a sentence of one year and six months in
1
Judge Rick A. Johnson completed this opinion prior to the expiration of his
term of office on December 31, 2006. Release of the opinion was delayed by
administrative handling.
2
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
prison.
Having concluded that it was not error for the trial
court to deny Wilson’s motion for a directed verdict of
acquittal on two counts of receiving stolen property over
$300.00,3 we affirm in part.
Having further concluded that there
was insufficient evidence to convict Wilson on the third count
of receiving stolen property as related to the Combs property,
and that the trial court erred in denying Wilson’s motion for a
directed verdict of acquittal as to that charge, we reverse in
part.
On November 4, 2004, Wilson was indicted by a
Breckinridge County grand jury on several counts, including
three counts of receiving stolen property valued at $300.00 or
more.4
The indictment charged that Wilson “received, retained or
disposed of” (1) a Lone Wolf, ten foot utility trailer and a Cub
Kadet log splitter belonging to Henry Fredricks, (2) a Yamaha
all-terrain vehicle (ATV) belonging to Gary Sears, and (3) a
John Deere lawn tractor belonging to Carol Combs.
3
Kentucky Revised Statutes (KRS) 514.110.
4
The Kentucky State Police had received information from an informant who
stated that he had stolen several items for Wilson in exchange for money and
drugs. In addition to the three counts of receiving stolen property, Wilson
was also charged with trafficking in marijuana enhanced by possession of a
firearm, KRS 218A.1421 and KRS 218A.992, possession of drug paraphernalia
enhanced by possession of a firearm, KRS 218A.500 and KRS 218A.992,
possession of a firearm by a convicted felon, KRS 527.040, and being a
persistent felony offender in the first degree, KRS 532.080(3). At the jury
trial, Wilson was found guilty of two lesser-included offenses, possession of
marijuana, KRS 218A.1422, and possession of drug paraphernalia, KRS 218A.500.
He was sentenced to 12 months for possession of marijuana, and 12 months for
possession of drug paraphernalia, with both sentences to run concurrently to
his conviction and sentence on the three counts of receiving stolen property,
for a total sentence of one year and six months.
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Each of the property owners testified during the jury
trial held on September 15 and 16, 2005.
Fredricks testified
that the utility trailer and the log splitter were stolen from
his backyard in July 2004.
Fredricks stated that he had
purchased the utility trailer new and had only owned it a few
months.
He also stated that he could sell the utility trailer
for $700.00, which was the original purchase price.
Fredricks
further stated that his sons had given him the log splitter as a
gift and for insurance purposes he had searched the Internet and
discovered that the list price for the log splitter was
$1,749.00.
When questioned, he stated that both items were
worth over $300.00 when they were returned to him and were in
the same condition as when stolen, except the serial number had
been removed from the utility trailer.
Sears testified that the ATV was stolen in February
2004 from a garage he owned.
He stated that he had purchased
the ATV four months before it was stolen and had paid
approximately $7,842.00 for the ATV.
He noted that when the ATV
was returned to him, it was obvious that it had been ridden
“quite a bit” and it was covered in mud.
Combs testified that the lawn tractor had been stolen
from her in July 2004.
She identified the lawn tractor in court
from photographs that were taken in a garage owned by Wilson.
She stated that the lawn tractor was never returned to her, but
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instead was given to her homeowner’s insurance company because
it had already paid her for the lawn tractor.
She stated that
the lawn tractor’s value was over $300.00 at the time it was
returned to the insurance company.
When Wilson moved for a directed verdict of acquittal
on the three counts of receiving stolen property, he cited
Tussey v. Commonwealth,5 and claimed the Commonwealth had failed
to establish the value of any of the property at the time it
came into Wilson’s possession.
The trial court denied the
motion, stating:
I assume the first question becomes: Does
the Defendant receive it when it first comes
into his hands? If that is the situation
that is the date of the indictment.6 Then
the Commonwealth not only has to prove that
it is stolen property they have to prove
that the Defendant took possession of it on
a certain date. That is an inordinate
burden of proof on the Commonwealth.
The trial court stated that the jury could determine the value
of the stolen items.
The jury returned a guilty verdict on each count of
receiving stolen property, and recommended a total sentence on
each of the three convictions of one year and six months in
prison, with the sentences to run concurrently.
5
The trial court
589 S.W.2d 215 (Ky. 1979).
6
All of the stolen property was recovered from Wilson on October 25, 2004,
and that is the date shown on the indictment.
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sentenced Wilson on October 6, 2005, in accordance with the
jury’s recommendation.
This appeal followed.
On appeal Wilson contends the trial court erred by
denying his motion for a directed verdict of acquittal on the
three counts of receiving stolen property based on the
Commonwealth’s failure to meet its burden to establish the value
of the property when it first came into Wilson’s possession.
Because this issue was dealt with by the denial of Wilson’s
motion for a directed verdict of acquittal, we will review this
case based upon the law as summarized in Commonwealth v. Benham:7
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.
On appellate review, the test of a
directed verdict is, if under the evidence
as a whole, it would be clearly unreasonable
for a jury to find guilt, only then the
defendant is entitled to a directed verdict
of acquittal.8
We agree with the Commonwealth that Wilson’s firm
reliance on Tussey is somewhat misplaced.
Although Tussey does
7
816 S.W.2d 186 (Ky. 1991).
8
Id. at 187 (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)).
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stand for the proposition that “the value of the stolen property
on the date the offender receives it is the proper date for
determining the severity of the violation[,]” it is factually
distinguishable from this case because the value of the stolen
property in Tussey had already “substantially depreciated” when
it came into the defendant’s possession.
In the case before us,
the Commonwealth clearly established that the value of
Fredricks’s property and Sears’s property had not been
substantially depreciated at the times the various property came
into Wilson’s possession.
In fact, both victims testified that
when the items were returned to them, the items were in the same
general condition as at the time they were stolen.
Thus, the
jury could reasonably infer from this testimony that when Wilson
came into possession of the items they were not so substantially
depreciated that their value was below $300.00.9
Accordingly, a
directed verdict of acquittal would have been improper as it
related to the property of Fredricks and Sears, and the trial
court did not err in denying Wilson’s motion as to these two
counts.
However, we conclude that the evidence relating to the
Combs property was not sufficient for the jury to make an
9
See Phillips v. Commonwealth, 679 S.W.2d 235, 237 (Ky. 1984) (noting that
sufficient descriptive testimony will enable a jury to reach an informed
conclusions regarding the value of a stolen item); and Brewer v.
Commonwealth, 632 S.W.2d 456, 457 (Ky.App. 1982) (noting that testimony by
the owner as to value of stolen property was not unreasonable).
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informed decision as to its value.
Combs testified that after
her lawn tractor was recovered, it was not returned to her, but
instead was returned to her homeowner’s insurance carrier.
Combs’s entire testimony as to the value of the lawn tractor was
as follows:
Q:
Did the police recover your John Deere
lawn tractor?
A:
Yes.
Q:
And is [the lawn tractor in the
photograph]10 the one they recovered?
A:
Yes.
Q:
And was that the one that had been
stolen from you?
A:
Correct.
Q:
When the property was returned to you,
from your knowledge, do you know
whether it had a value of $300.00 or
more?
Q:
Objection.
Court:
A:
If she knows, she can answer. Did
it have a fair market value of
$300.00 or more at the time it was
returned to you, that’s the
question.
It was returned to the insurance
company, but, yes, it was over $300.00.
10
Photographs of the lawn tractor taken on October 25, 2004, were presented
to the jury. Although the photographic evidence was permissible, the
pictures introduced reveal little about the actual condition of the lawn
tractor. See Lee v. Commonwealth, 547 S.W.2d 792 (Ky.App. 1977).
-7-
The Commonwealth in its brief summarized this evidence as
follows:
In July 2004, Carol Combs had stolen from
her a John Deere law tractor.
The lawn tractor was not returned to her.
It was returned to her homeowner’s
insurance carrier.
Combs testified the lawn tractor exceeded
$300.00 in value.
Photographic evidence showing the
condition of the tractor was introduced
[citations to record omitted].
Thus, Combs did not testify as to when she purchased
the lawn tractor, to its original purchase price, or to the
amount she received from her insurance company.
At no time was
the jury told whether the lawn tractor was in working order, nor
was the jury furnished with sufficient descriptive testimony or
exhibits which would have enabled it to make a reasonable
inference as to its value at anytime.
While the stolen lawn
tractor may very well have been worth more than $300.00,
there
was insufficient evidence that when the lawn tractor came into
Wilson’s possession it was worth at least $300.00.
Further,
while a property owner is qualified to give their opinion as to
the value of their own personal property, a factual basis must
be established for that opinion.11
11
There simply was no basis for
Brewer v. Commonwealth, 632 S.W.2d 456 (Ky.App. 1982).
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Combs’s testimony that the lawn tractor “was worth over
$300.00.”
Accordingly, we affirm the judgment of the
Breckinridge Circuit Court as it relates to Wilson’s convictions
and sentences for receiving stolen property owned by Fredricks
and Sears, but reverse the judgment as it pertains to Wilson’s
conviction and sentence for receiving stolen property owned by
Combs.
TAYLOR, JUDGE, CONCURS.
BUCKINGHAM, SENIOR JUDGE, CONCURS IN PART, DISSENTS IN
PART, AND FILES SEPARATE OPINION.
BUCKINGHAM, SENIOR JUDGE, CONCURRING IN PART AND
DISSENTING IN PART:
I concur in part and dissent in part.
I
respectfully dissent from the portion of the majority opinion
that reverses the count of the offense of knowingly receiving
stolen property dealing with the Combs property.
The majority acknowledges that a property owner is
qualified to give an opinion as to the value of his or her own
personal property.
However, the majority further states that a
factual basis must be established for that opinion in order that
the evidence is sufficient to overcome a directed verdict
motion.
I disagree.
In my opinion, the testimony of the
property owner by itself is sufficient, especially where, as
here, there was no evidence rebutting that testimony.
-9-
The Lee case is distinguishable since there was no
direct proof whatsoever of the value of the stolen property.
The Brewer case, relied on by the majority, cites the Lee case
and acknowledges that the owner of stolen property may testify
as to its value.
If the law is as stated by the majority, then the
testimony of the property owner should not be admissible at all
unless accompanied by a factual basis to support the opinion.
Since case law allows the testimony to be admitted without a
factual basis, I believe that testimony is sufficient to
overcome a directed verdict motion, especially where, as here,
the testimony was not rebutted by any other evidence.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brett Butler
Louisville, Kentucky
Gregory D. Stumbo
Attorney General
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
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