COMMONWEALTH OF KENTUCKY v. RAYMOND MICHAEL JARRELL
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RENDERED:
November 22, 1996; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-0862-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE DANNY P. CAUDILL, JUDGE
ACTION NO. 95-CR-120
v.
RAYMOND MICHAEL JARRELL
APPELLEE
OPINION
REVERSING AND REMANDING
* * * * * * *
BEFORE:
GUIDUGLI, JOHNSON, and KNOPF, Judges.
KNOPF, JUDGE:
This is an appeal from a judgment of the Floyd
Circuit Court dismissing an indictment against the appellee,
Raymond Michael Jarrell, which charged theft by failure to make
required disposition of property in violation of KRS 514.070.
The precise language of the indictment is as follows:
The grand jury charges: That during the
period of time between the 1st day of April,
1989, and the 31st day of May, 1989, in Floyd
County, Kentucky, the above named defendant
committed the offense of theft by failure to
make required disposition of property, in
violation of KRS 514.070, when, he obtained
gravel worth more than $300.00 and subject to
a known legal obligation to be used only on
public roads for public purposes, and
intentionally dealt with the gravel as his
own by having placed it on private property.
Jarrell moved to dismiss on the ground that the
indictment did not comply with RCr 6.10(2) insofar as it failed
to state the essential facts constituting the offense charged,
and that evidence presented to the grand jury did not support the
charged offense.
The trial court granted the motion to dismiss
the indictment without an opinion.
The Commonwealth now appeals.
We agree with the Commonwealth, and reverse the trial court.
Jarrell raises the same three (3) related arguments as
he made before the trial court.
He asserts that the indictment
did not state the essential element that he received the
property.
He also argues that there was no evidence presented to
the grand jury that he received the property.
Consequently, he
asserted that the only offense which the indictment could have
charged was the misdemeanor offense of misapplication of
entrusted property in violation of KRS 517.110; a charge which
was barred by the statute of limitations.
The indictment must be examined in light of the statute
under which Jarrell was charged.
KRS 514.070 provides that:
(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 an
equivalent amount; and
(b)He intentionally deals with the
property as his own and fails to make the
required payment or disposition.
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The question presented is whether the indictment
achieved its purpose, that is, to give Jarrell notice of the
charge against him and to protect him from a subsequent
prosecution for the same offense.
An indictment under RCr 6.10
"is sufficient if it informs the accused of the specific offense
with which he is charged and does not mislead him".
Commonwealth, Ky., 556 S.W.2d 1, 2 (1977).
Wylie v.
"The omission of
details or the absence of allegations of all of the elements of
the offense generally may be overlooked, especially when the
indictment includes a citation to the applicable statute that was
violated." 8 Leslie W. Abramson, Ky. Criminal Practice and
Procedure, § 12.8 (2d ed., 1987); citing Godsey v. Commonwealth,
Ky. App. 661 S.W.2d 2 (1983); and Wylie v. Commonwealth, supra.
In Stark v. Commonwealth, Ky., 828 S.W.2d 603 (1992),
the Supreme Court held that the indictment's failure to include
an essential element of the offense constituted a failure to
state a public offense.
As a result, the defective indictments
in Stark were dismissed, even though the error had not been
raised before the trial court.
Id., 828 S.W.2d at 606.
However,
in a recent to-be-published opinion, Thomas v. Commonwealth, Ky.,
95-SC-234 (rendered September 26, 1996, finality endorsement
granted October 17, 1996), the Supreme Court of Kentucky
partially overruled Stark.
In Thomas, the Court held that when
an indictment charges an offense, states the statute under which
the defendant is being charged, and provides the date and
location of the alleged offense, it is sufficient to put the
defendant on notice of the nature of the charge.
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When an
otherwise valid indictment is issued, but it fails to state an
element of the offense charged, the defendant's proper remedy is
to obtain a bill of particulars.
Id., Slip Op. at 9-10.
As was the case in Thomas, the indictment against
Jarrell stated the dates on which the alleged offenses occurred,
the location of the alleged offense, and the statute under which
he was being charged.
The record is unclear regarding the
circumstances under which Jarrell obtained the gravel.
The
indictment states only that he "obtained" it, "subject to a known
legal obligation to be used only on public roads for public
purposes".
While the facts presented in the indictment are
sketchy, we find that they were sufficient to put Jarrell on
notice of the nature of the charge against him.
We also disagree that the facts as alleged in the
indictment more specifically describe the offense of
misapplication of entrusted property.
As stated above, the
description of the offense in the indictment adequately outlines
the offense of theft by failure to make required disposition of
property.
Furthermore, we find that there is no conflict between
KRS 514.070 and 517.110.
While both statutes require an
unauthorized disposition of property, the offense of
misapplication of entrusted property requires that a defendant
must know that the unauthorized disposition involves a
substantial risk of loss to the owner of the property.
On the
other hand, KRS 514.070 requires that the defendant intentionally
deal with the property as his own and fail to make the required
payment or disposition.
Where the gravamen of the two (2)
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offenses are different, the statutes do not conflict and it is
unnecessary to apply the rule that specific legislation prevails
over a general statute.
Commonwealth v. McKinney, Ky. App., 594
S.W.2d 884, 887 (1980).
Finally, we agree with the Commonwealth that the trial
court could not have dismissed the indictment for lack of
evidence presented to the grand jury.
As this court recently
stated in Commonwealth v. Hamilton, Ky. App., 905 S.W.2d 83, 84
(1995):
[t]here is no authority for the
use of summary judgment procedure
in a criminal prosecution, and it
is our opinion that the evidence
could not properly be considered
on the motions to dismiss.
Commonwealth v. Hayden, Ky., 489 S.W.2d 513,
516 (1972). If the indictment is valid on
its face and conforms to the requirements of
RCr 6.10, the Commonwealth is given the
burden of proving all of the elements of the
crime.
The grand jury is not an agency or an adjunct of the
prosecuting attorney.
38 C.J.S. Grand Juries § 1, p. 982.
We
would view with great suspicion an indictment which was returned
by a grand jury in the absence of any evidence whatsoever.
Generally, the validity of any indictment cannot be successfully
attacked upon the ground of insufficient evidence.
King v.
Veneers, Ky., 595 S.W.2d 714, 715 (1980).
Consequently, the only relevant question is whether the
indictment meets the requirements of RCr 6.10.
If the indictment
satisfies this threshold, the decision whether or not to
prosecute, and what charge to bring before the grand jury
-5-
generally rests entirely in the prosecutor's discretion.
Commonwealth v. McKinney, 594 S.W.2d at 888; quoting,
Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d
604, 611 (1978).
It is presumed as a matter of course that the
prosecutor will exercise proper discretion in these duties.
If
the Commonwealth fails to present evidence at trial that Jarrell
"obtained" the gravel, then he will be entitled to a directed
verdict at the close of the Commonwealth's case.
Until that
time, the trial court may not dismiss the indictment for lack of
evidence.
Accordingly, the judgment of the Floyd Circuit Court is
reversed, and this action is remanded with directions to
reinstate the indictment against the appellee.
ALL CONCUR.
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BRIEF FOR APPELLEE:
BRIEF FOR APPELLANT:
A.B. Chandler III
Attorney General
Gerald D. Derossett
Pillersdorf, Derossett &
Barrett
Prestonsburg, Ky
Larry Fentress
Assistant Attorney General
Frankfort, Ky
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