ARTHUR R. FISHER v. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 2, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-002430-MR
ARTHUR R. FISHER
v.
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE JANET P. COLEMAN, JUDGE
ACTION NO. 03-CR-00173
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: WINE JUDGE; BUCKINGHAM AND EMBERTON SENIOR JUDGES.1
BUCKINGHAM, SENIOR JUDGE: Arthur R. Fisher appeals from a final judgment,
entered upon a jury verdict by the Hardin Circuit Court, convicting him of nine counts of
complicity to commit diverting charitable gaming funds, $300 or more, and nine counts
of complicity to commit theft by failure to make required disposition of property over
$300, and sentencing him to 13 months on each count, to be served concurrently. For the
reasons stated below, we affirm.
1
Senior Judges David C. Buckingham and Thomas D. Emberton 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.
On April 29, 2003, Fisher was indicted by a Hardin County grand jury on
nine counts of complicity to commit diverting charitable gaming funds, $300 or more, in
violation of Kentucky Revised Statutes (KRS) 238.995(4) and KRS 502.020, and nine
counts of complicity to commit theft by failure to make required disposition of property
over $300, in violation of KRS 514.070 and KRS 502.020. Francis E. Latendresse, Jan
E. Cooper, and Yon Frantum were indicted as codefendants.
The charges were brought in connection with an allegation that over a
three-year period (1999-2001) Fisher and his codefendants had participated in the
skimming of proceeds from bingo games sponsored by the Military Order of the Purple
Heart, the North Hardin Lions Club, and the Disabled American Veterans #156.
Yon Frantum entered a guilty plea prior to trial. At the conclusion of the
Commonwealth’s case in the trial of Latendresse, Fisher, and Cooper, the trial court
granted a directed verdict in Cooper’s favor. The jury, however, found Fisher and
Latendresse guilty of all charges. The jury recommended a sentence of 13 months on
each charge, to run concurrently, for each defendant.
On November 7, 2005, the trial court entered a final judgment consistent
with the jury’s verdict and sentencing recommendation. Both Latendresse and Fisher
were granted probation. In addition, the final judgment ordered Latendresse and Fisher
to pay restitution pursuant to KRS 533.030(3) in the amount of $341,776.86. This appeal
followed.
2
Denial of Motion to Dismiss
First, Fisher contends that the trial court erred by failing to dismiss the
indictment because at a previously scheduled trial date the Commonwealth released its
witnesses without the trial court’s permission.
The record discloses that the case was previously scheduled for trial on
June 20, 2005. At the scheduled start-time, however, the presiding judge was not present.
In the wake of the confusion surrounding the judge’s absence, the Commonwealth
released its witnesses. The trial was therefore continued until August 3, 2005.
Fisher subsequently moved to dismiss the indictment based upon the
Commonwealth having released the witnesses without the trial court’s permission. The
trial court addressed the motion prior to the commencement of trial on August 3, 2005.
In denying the motion, the court stated as follows:
We did have confusion on, and I had been on vacation a few
days. Let me see. This was scheduled to be tried on the last
day that I was coming back. And, I had spoken with Judge
Easton because he had said that he might be able to go ahead
and start that, and if not, he would have it put on for the next
day, or next trial day, which would be Wednesday. And my
understanding all along was that we were, if he could not start
it on Monday, as he had hoped to, that we would start right in
on Wednesday. When I got here on Wednesday, I was told
that the Commonwealth, apparently, for some reason, had cut
all of their witnesses loose. And, that was not my
understanding of what was to happen; however, because of
the possibility of confusion on the issue and because we had
had several delays in the case previous, at least some of
which were caused by situations that had arisen with the
defense, and specifically I recall a call over the weekend on
my cell phone at my sister’s house wherein I was told that
one of the defendant’s [unintelligible] passed away. I mean,
just because there had been other delays, I thought it would
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be most fair, in my judgment to delay it briefly. I had this
date here that was available, and nobody indicated an
objection at that time. So, I had already overruled this
particular motion to dismiss based on the Commonwealth
releasing its witnesses, assuming that there might have been
some confusion there. And we’ve already dealt with that
fairly extensively.
....
I assumed that there was confusion. And partly because my
schedule might have caused the confusion too. May have
even been confusion on my part. And, considering how many
delays there have been, and the fact that I know the most
recent delay had been a delay which was sought by the
defense. And it was very reasonably sought. I don’t mean to
say it wasn’t. But, that is kind of of what I had, and that’s the
ruling I made, and why. But we are here today. Nobody
objected to today’s date.
....
I believe, I mean my understanding of the case law, in
situations like this, is that it’s a matter within my discretion.
That is my belief. And, while I did not, I did not authorize
those witnesses to be released, my intention was to start it
Wednesday, and to try it. As I said, Because of the potential
confusion and previous continuances, my feeling was that it
would be most fair to grant a short delay . . . . I thought that
the harm in the situation was minimal considering the the
number of delays that had already taken place.
Generally, a trial court is not unilaterally permitted to dismiss an
indictment. See Kentucky Rules of Criminal Procedure (RCr) 9.64.2 A generally
recognized exception to this rule is, of course, dismissal upon speedy trial grounds. See,
2
RCr 9.64 provides as follows: “The attorney for the Commonwealth, with the permission of the
court, may dismiss the indictment, information, complaint or uniform citation prior to the
swearing of the jury or, in a non-jury case, prior to the swearing of the first witness.”
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e.g., Gerlaugh v. Commonwealth, 156 S.W.3d 747, 750 (Ky. 2005). Fisher, however,
does not allege a violation of his right to a speedy trial.
Prosecutorial misconduct may also warrant unilateral dismissal. See, e.g.,
Commonwealth v. Baker, 11 S.W.3d 585 (Ky.App. 2000) (presentation of false testimony
to grand jury). Here, however, the trial court concluded that the Commonwealth’s release
of its witnesses was as a result of confusion – not calculated efforts by the
Commonwealth aimed at gaining a strategic advantage or for some other improper
motive.
In the final analysis, this was a ruling by the trial court, albeit
retrospectively, concerning whether a continuance was proper. RCr 9.04 states that a
court may grant a continuance upon “sufficient cause shown.” The decision as to
whether to grant a continuance is within the sound discretion of the trial court based upon
the unique facts and circumstances of the case. Eldred v. Commonwealth, 906 S.W.2d
694, 699 (Ky. 1994) (overruled on other grounds by Commonwealth v. Barroso, 122
S.W.3d 554 (Ky. 2003)). “The test for abuse of discretion is whether the trial judge's
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Woodard v. Commonwealth, 147 S.W.3d 63, 67 (Ky. 2004). As set forth above, the trial
court provided sound reasons why a continuance was proper following the release of the
witnesses, the principal reason being that the Commonwealth’s release of the witnesses
was a product of confusion. Accordingly, the court did not abuse its discretion in
denying Fisher’s motion to dismiss the indictment.
5
Denial of Motion to Produce Documents
Next, Fisher contends that the trial court erred “by refusing to require the
Commonwealth to produce each document that supported a witness’s claim or assertion.”
Prior to trial, Fisher filed a motion in limine moving
[t]he court to require all witnesses for the Commonwealth to
identify and to produce each specific record or document that
relates to or supports a statement, assertion or conclusion
made by that witness or another witness through his or her
testimony. The defendants object to any witness merely
making a general reference to “documents” or “records.”
Production of the specific document or record during
testimony should be required.
Prior to the commencement of trial, the court orally denied the motion. In
so doing, the court stated as follows:
I will not rule in limine on an issue like that. I think it is
appropriate for me to see what you are seeking to present as it
comes up. I don’t think it would be appropriate for me to
make a general, overall ruling they can’t refer to stuff in
boxes, or something. If you think, as the testimony is
produced, as the testimony develops, you think that there is
something wrong, tell me that. But, just a blanket motion in
limine, such as this, I’m overruling. And, I’ll consider each
individual objection as it’s made because I don’t think I have
enough information, as I sit here, to intelligently rule upon it.
I mean, generally speaking, if they are testifying about
something, sure, they’re supposed to present documentation.
I mean, you know, on the other hand, you’re right, they’re
supposed to [unintellgible]. But exactly how they do it, I
don’t think its incumbent upon me to direct that, at this point,
based on this motion.
Kentucky Rule of Evidence (KRE) 103(d), which deals with ruling on
motions in limine, states the following:
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A party may move the court for a ruling in advance of trial on
the admission or exclusion of evidence. The court may rule
on such a motion in advance of trial or may defer a decision
on admissibility until the evidence is offered at trial. . . .
Nothing in this rule precludes the court from reconsidering at
trial any ruling made on a motion in limine.
The trial court has discretion in deciding whether to rule on a motion in
limine. Stanford v. Commonwealth, 793 S.W.2d 112, 117 (Ky. 1990). Moreover, a trial
court has wide discretion regarding evidentiary matters. It is well-settled that the
evidentiary decisions of the trial court will not be disturbed absent an abuse of discretion.
Partin v. Commonwealth, 918 S.W.2d. 219, 222 (Ky. 1996).
The court’s ruling denying Fisher’s motion recognized the vagueness of the
motion and the difficulties associated with granting such a broad request. Further, the
court invited Fisher’s attorney to object during the trial to specific testimony unsupported
by documentation as the occasion arose. In that regard, Fisher has not cited us to
subsequent objections that were overruled. In view of the foregoing, we conclude that
the court did not abuse its discretion in denying Fisher’s motion in limine.
Directed Verdict
Fisher next contends that the trial court erred by failing to grant his motion
for a directed verdict based upon insufficiency of the evidence. He argues that no
evidence was presented at trial of a complicity to commit the offenses charged; that there
was no evidence that he acted contrary to law in his individual capacity; that there was no
documentary evidence of substance in support of the charges; and that the undisputed
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testimony was that another individual, Archie Gaige, now deceased, manipulated the
bingo financial records.
When ruling on a motion for a directed verdict of acquittal, the trial court is
required to consider all evidence presented in a light most favorable to the
Commonwealth. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). On
appeal, the standard of review is whether or not it was clearly unreasonable for the factfinder to find guilt. Commonwealth v. Sawhill, 660 S.W.2d 3,5 (Ky. 1983). Under these
standards, we conclude there was sufficient evidence to support the jury’s verdict.
KRS 238.995, the diversion of charitable funds statute, provides as follows:
Any person who knowingly diverts charitable gaming funds
from legitimate charitable purpose or lawful expenses
allowed under this chapter to his financial benefit or the
financial benefit of another person shall be guilty of a Class A
misdemeanor if the amount involved is less than three
hundred dollars ($300) and a Class D felony if the amount
involved is three hundred dollars ($300) or more.
KRS 514.070, the theft by failure to make required disposition of property
statute, provides, in relevant part, as follows:
(1) A person is guilty of theft by failure to make required
disposition of property received 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.
8
(2) The provisions of subsection (1) apply notwithstanding
that it may be impossible to identify particular property as
belonging to the victim at the time of the actor's failure to
make the required payment or disposition.
And KRS 502.020, the complicity statute, provides as follows:
(1) A person is guilty of an offense committed by another
person when, with the intention of promoting or facilitating
the commission of the offense, he:
(a) Solicits, commands, or engages in a conspiracy with such
other person to commit the offense; or
(b) Aids, counsels, or attempts to aid such person in planning
or committing the offense; or
(c) Having a legal duty to prevent the commission of the
offense, fails to make a proper effort to do so.
(2) When causing a particular result is an element of an
offense, a person who acts with the kind of culpability with
respect to the result that is sufficient for the commission of
the offense is guilty of that offense when he:
(a) Solicits or engages in a conspiracy with another person to
engage in the conduct causing such result; or
(b) Aids, counsels, or attempts to aid another person in
planning, or engaging in the conduct causing such result; or
(c) Having a legal duty to prevent the conduct causing the
result, fails to make a proper effort to do so.
Trial testimony disclosed that Fisher and Latendresse incorporated and
owned a licensed gaming facility known as M.D.L. Charities, Inc., d/b/a Globe Bingo
Hall, and a licensed gaming supplies distributor known as L&F Distributors. The bingo
games for three charities, Disabled American Veterans #156, the Military Order of the
9
Purple Heart, and North Hardin Lions Club, were conducted at Globe Bingo Hall. The
gaming supplies for the sessions were provided by L&F.
M.D.L. Charities and L&F Distributors listed their address as 309 N.
Wilson Street, Radcliff, Kentucky. In their gaming license applications, each of the three
charities also listed its address as the same location.
As owners of Globe Bingo Hall, Fisher and Latendresse were prohibited by
law from receiving or handling any of the charities’ gaming proceeds. Nevertheless, trial
testimony disclosed that they did handle the proceeds and had signature authority for the
charitable gaming bank account for each of the three charities.
As a result of its preliminary investigations, the Office of Charitable
Gaming conducted an audit of each of the three charities’ books. The audits disclosed
that for each charity there were significant discrepancies between the net receipts
(amount of proceeds received less prize payouts) and the amounts deposited into the
gaming accounts. The audits disclosed that the total shortage over the three-year period
for Disabled American Veterans was $85,686.51, that the total shortage for the three-year
period for the Military Order of the Purple Heart was $121,808.10, and that the total
shortage for the three-year period for the Lions Club was $134,282.23.
Based upon the audit results testified to at trial, there was sufficient
evidence in the record to support a conclusion by the jury that funds were diverted and
that there was a failure to make proper disposition of the funds.
Further, there was sufficient evidence presented at trial by which a
reasonable jury could conclude that Fisher was complicit in the disappearance of the
10
funds. Admittedly, much of the evidence linking Fisher to the disappearance of the funds
was circumstantial. However, the Commonwealth may prove guilt by circumstantial
evidence. Varble v. Commonwealth, 125 S.W.3d 246, 254-55 (Ky. 2004); Blades v.
Commonwealth, 957 S.W.2d 246, 250 (Ky. 1997). Circumstantial evidence is evidence
that makes the existence of a relevant fact "more likely than not." Timmons v.
Commonwealth, 555 S.W.2d 234, 237-38 (Ky. 1977). The test of the sufficiency of the
evidence on a motion for a directed verdict is the same for circumstantial evidence as for
direct evidence. Davis v. Commonwealth, 795 S.W.2d 942, 945 (Ky. 1990).
Fisher and Latendresse were the principal organizers and administrators of
the bingo operations. Fisher was involved with the counting of the funds which were
collected at the bingo sessions, and the money was then stored in Fisher and
Latendresse’s office prior to deposit. Thus, Fisher and Latendresse had access to the
money after it was placed in the office safe. Fisher and Latendresse also had access to
the funds through their signature authority on the bank accounts. Moreover, the audit
also disclosed that the session sheets were routinely altered after the fact.
From this evidence, the inference could be made that the principal
administrators of the funds – Fisher and Latendresse – were responsible for their
disappearance. Further, their involvement in the disappearance of the funds may be
inferred from the improbability that over one-third of a million dollars could disappear
from the bingo operations over a three-year period without their knowledge. In short, a
reasonable jury could conclude that Fisher and Latendresse were involved in the
diversion and failure to make proper disposition of the missing gaming funds.
11
Separate Offense Instructions
Next, Fisher contends that the trial court erred by giving a separate
instruction for each of the two offenses charged for each of the three charities for each of
the three years involved. Fisher alleges that he was subject to conviction for only one
count of conspiracy to divert charitable gaming funds and one count of failure to make
required disposition for each charity, and was thus subject to only six total convictions
rather than the eighteen counts as presented to the jury. In support of his argument,
Fisher relies upon KRS 505.020(1)(c) and Smith v. Commonwealth, 818 S.W.2d 620
(Ky.App. 1991).
KRS 505.020(1) provides, in relevant part, as follows:
(1) When a single course of conduct of a defendant may
establish the commission of more than one (1) offense, he
may be prosecuted for each such offense. He may not,
however, be convicted of more than one (1) offense when:
....
(c) The offense is designed to prohibit a continuing course of
conduct and the defendant's course of conduct was
uninterrupted by legal process, unless the law expressly
provides that specific periods of such conduct constitute
separate offenses.
The commentary to the statute provides as follows:
Subsection (1)(c) provides for the third exception to the
general proposition. This exception applies to offenses which
seek to proscribe a continuing course of conduct. An example
would be the offense of nonsupport of a dependant, which is
committed when a parent intentionally fails to provide
support for his child when able to so provide. With this type
of offense, subsection (c) limits the number of convictions of
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an offender to one unless it can be shown that: the offender's
conduct was interrupted by legal process; or the statute
defining the offense designates specific periods of time as
separate offenses. This approach places the burden on the
legislature to determine the instances in which a continuing
course of conduct involves sufficient danger to be treated as
multiple offenses.
We are not persuaded that the purpose of either of the statutes under which
Fisher was charged was designed to prohibit a continuing course of conduct as in, for
example, the ongoing failure to pay child support. Rather, in a case of the diversions and
thefts such as those in this case, each discrete diversion and theft is chargeable as a
separate offense, as, for example, each theft from each individual session. See Smith v.
Commonwealth, supra. See also Commonwealth v. Bass, 777 S.W.2d 916 (Ky. 1989).
In short, charging the defendants in this case presented the Commonwealth
with various options. Multiple discrete diversions and thefts from three charities over a
three-year period were involved. We conclude that the Commonwealth properly
exercised its prosecutorial discretion in charging a discrete offense for each year for each
charity for each felony. See Flynt v. Commonwealth, 105 S.W.3d 415 (Ky. 2003)
(discussing prosecutorial discretion).
Restitution to Military Order of the Purple Heart
Fisher contends that the trial court erred by ordering that restitution relating
to amounts skimmed from the Military Order of the Purple Heart charity be paid to the
state treasurer of the Military Order of the Purple Heart. Fisher alleges that since the
Radcliff organization, which was the specific victim of the thefts, is now defunct, there is
13
no victim to whom restitution is owing, and hence no restitution payment is required. We
disagree.
KRS 532.032 provides, in relevant part, as follows:
(1) Restitution to a named victim, if there is a named victim,
shall be ordered in a manner consistent, insofar as possible,
with the provisions of this section and KRS 439.563, 532.033,
533.020, and 533.0303 in addition to any other part of the
penalty for any offense under this chapter. The provisions of
this section shall not be subject to suspension or
nonimposition.
....
(3) If probation . . . is granted, restitution shall be a condition
of the sentence.
Therefore, in order for Fisher to receive probation – which he requested and received – he
was required to make restitution to the “victim” of the thefts from the Military Order of
the Purple Heart.
KRS Chapter 532 does not provide a definition for “victim.” The direct
“victim” of the thefts, the Radcliff branch of the Purple Heart organization, is defunct.
However, upon application of the basic principles of statutory construction, we believe
the term “victim,” under the facts of this case, also applies to the defunct organization’s
parent, the state headquarters of the Military Order of the Purple Heart.
The primary purpose of judicial construction is to carry out the intent of the
legislature. In construing a statute, the courts must consider “the intended purpose of the
KRS 533.030(3) provides as follows: “When imposing a sentence of probation . . . a case
where a victim of a crime has suffered monetary damage as a result of the crime due to his
property having been converted, stolen, or unlawfully obtained . . . the court shall order the
defendant to make restitution in addition to any other penalty provided for the commission of the
offense.”
3
14
statute-and the mischief intended to be remedied.” The courts should reject a
construction that is “unreasonable and absurd, in preference for one that is ‘reasonable,
rational, sensible and intelligent[.]’” Commonwealth v. Kerr, 136 S.W.3d 783, 785
(Ky.App. 2004); Commonwealth v. Kash, 967 S.W.2d 37, 43-44 (Ky.App. 1997)).
The interpretation proposed by Fisher is that since the Radcliff chapter of
the organization is defunct, he should be relieved of any obligation to make restitution
and should be able to retain any proceeds stolen from the charity. However, because
there is a viable alternative victim – the state headquarters of the organization – Fisher’s
proposed interpretation produces an unreasonable result. In short, we believe the trial
court properly ordered restitution to be paid to the state treasurer of the Military Order of
the Purple Heart.
Amount of Restitution
Fisher contends that the trial court erred by ordering restitution in the
amounts listed based upon the testimony as presented at trial. He alleges that the
Commonwealth’s evidence was lacking; that the Commonwealth violated KRE 1002 and
KRE 1006 by using summaries of documents and data, instead of the original documents
with the data, without giving proper advance notice to him of its intention to so proceed
at trial; that the data testified to by the Commonwealth’s witnesses was unreliable as it is
uncontroverted that it was incorrect, manipulated, incomplete, or otherwise
untrustworthy; and that reliance upon the Commonwealth’s evidence fails the due
process requirement of a “minimum indicium of reliability” of the evidence of the
amount of restitution.
15
KRS 532.033(3) charges the trial court with setting the amount of
restitution. As such, the statute contemplates the trial court as being the fact-finder in the
matter. Following a hearing on the issue, the trial court ordered total restitution of
$341,776.86.
The amount of restitution is before this court upon the trial court's findings
of fact and upon the record made in the trial court. Accordingly, appellate review of the
trial court's findings of fact is governed by the rule that such findings shall not be set
aside unless clearly erroneous. Kentucky Rule of Civil Procedure (CR) 51.01. A factual
finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning
Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998); Uninsured Employers'
Fund v. Garland, 805 S.W.2d 116, 117 (Ky. 1991). Substantial evidence is evidence
which, when taken alone or in light of all the evidence, has sufficient probative value to
induce conviction in the mind of a reasonable person. Golightly, 976 S.W.2d at 414.
There was testimony and evidence, presented at trial and at the hearing, in
support of the amount of restitution ordered by the trial court. The $341,776.86 ordered
in restitution is based upon a comparison of the sheets reflecting the actual net bingo
receipts compared with actual deposits. As such, there is substantial evidence in the
record supporting the court’s decision. Fisher’s argument consists of little more than a
generalized attack upon the quality and reliability of the testimony and evidence.
However, judgment on those issues is within the province of the fact-finder, not this
court. Therefore, we will not disturb the trial court’s determination of the proper
restitution payable to each charity.
16
Equal Protection
Finally, Fisher contends that the trial court violated his equal protection
rights by ordering him to pay restitution when Yon Frantum, who was convicted by
guilty plea of the same offenses, was sentenced to probation without any requirement that
she pay restitution.
In support of his argument Fisher has included in the appendix to his brief
what purports to be Frantum’s indictment and plea agreement. However, as noted by the
Commonwealth, these documents are not included in the record in this case. As such,
these materials are outside of the record on appeal, in violation of CR 76.12(4)(vii).
Accordingly, we have disregarded these materials in our consideration of this appeal.
As previously noted, where the victim of a crime has suffered monetary
damage as a result of the crime due to his property having been converted, stolen, or
unlawfully obtained, an order requiring the defendant to pay restitution is mandatory in
connection with the granting of probation. KRS 533.030(3); KRS 532.032(3). However,
the Frantum case is not before us, and Fisher may find no relief in the trial court’s failure
to impose a restitution requirement upon Frantum, if that, in fact, is what occurred.
We cannot, of course, direct the trial court to now impose a restitution
requirement upon Frantum. Moreover, as previously discussed, the trial court properly
imposed a restitution requirement upon Fisher in this case. We accordingly will not
disturb the restitution order in this case based upon what may or may not have occurred
in the Frantum case – which record we do not have before us.
17
For the foregoing reasons, the judgment of the Hardin Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert C. Bishop
Elizabethtown, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
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