SHELLY LYNN ROBBINS v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: NOVEMBER 15, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-001712-MR
SHELLY LYNN ROBBINS
APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
INDICTMENT NO. 00-CR-00064
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: GUIDUGLI, HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge:
Shelly Lynn Robbins appeals from a Boyle
Circuit Court judgment imposing a probated sentence of five years
for theft by failure to make required disposition of property
valued at $300.00
or more1 following a jury trial.
Robbins
challenges, inter alia, the circuit court’s failure to dismiss the
indictment
for
failure
to
charge
an
offense
under
the
fact
situation in this case.
In the summer of 1999, Shelly and his brother, Norman
Robbins, orally agreed to jointly purchase for $3,400.00 and share
1
Ky. Rev. Stat. (KRS) 514.070.
in
the
handling
of
two
standard-bred
Norobbinthelady and Norobbinthebarbie.
trotting
horses
named
Under their joint venture2
agreement, Norman served as the trainer and principle manager of
the horses with Shelly and Norman sharing equal responsibility for
the expenses associated with maintenance and racing the horses and
equal allocation of the profits or winning purses.
2000,
the
two
horses
were
registered
with
the
In January
United
States
Trotting Association (U.S.T.A.) and a certificate of registration
was issued listing Shelly and Norman as the owners.
At that time,
Susan Stahl, Norman’s fiancé, assisted Norman with the care of the
horses.
Subsequently, Susan and Norman married.
In June 2000, amidst a dispute concerning the proper
accounting of costs and profits for the horses, Shelly informed
Norman that he wanted to terminate their arrangement.
Shelly
initially offered to purchase Norman’s interest but quickly changed
his mind. Norman alleged that he told Shelly that Susan wanted to
purchase Shelly’s half-interest in Norobbinthelady for $9,000.00.3
Shelly asserts that Norman stated that he (Norman) would purchase
the horse.
On June 29, 2000, the three participants met at the
Farmers Bank to complete the transfer. Shelly and Norman went into
the bank while Susan remained in the car.
Norman gave Shelly a
check made out to Shelly by Susan on her checking account for
2
See Huff v. Rosenberg, Ky., 496 S.W.2d 352 (1973)
(listing characteristics of a joint venture or joint enterprise);
Roethke v. Sanger, Ky., 68 S.W.3d 352 (2001).
3
Because Norobbinthebarbie had developed health problems,
Susan indicated that she had no desire to acquire an interest in
that horse.
-2-
$9,000.00 with the written memo “1/2 interest Norobbinthelady.”
Shelly endorsed the check and presented it to the bank, which
immediately transferred the funds into his checking account.
When
Norman then asked Shelly to sign the U.S.T.A. certificate of
registration signifying a transfer of ownership to Susan, he
refused.
Shelly allegedly told Norman that he would not fill out
the registration document until they settled their dispute about
various other debts and costs associated with the two horses.
A
heated discussion ensued and Shelly left without signing the
certificate of registration. When Susan immediately inquired about
stopping payment on the check, the bank employees informed her that
the funds transfer had been completed and could not be revoked.
Subsequently, Susan asked Shelly to return the $9,000.00, but he
responded that he would sign the certificate of registration in
connection with a full settlement and accounting of all the debts
between himself and Norman.
Meanwhile, Norman retained physical
possession of Norobbinthelady.4
On September 1, 2000, a Boyle County grand jury indicted
Shelly for the felony offense of theft by failure to make required
disposition of property.
The indictment charged that:
On or about the 29th day of June, 2000, in
Boyle County, Kentucky, the above named defendant, Shelly
Lynn Robbins, committed the offense of Theft by Failure
to Make Required Disposition Over $300[.00] when he took
$300.00 or more from Susan Stahl Robbins in exchange for
4
In fact, Norman entered Norobbinthelady in a race without
telling Shelly, but she finished out-of-the-money.
-3-
half interest in a horse and refused to transfer half
interest in the horse, and converted the proceeds to his
own
use,
against
the
peace
and
dignity
of
the
Commonwealth of Kentucky.
On September 29, 2000, Shelly filed a motion to dismiss
the indictment because the circumstances involved a civil dispute
rather than criminal conduct.
On
March
26,
2001,
His motion was summarily denied.
the
morning
of
trial,
Shelly’s
attorney orally renewed his motion to dismiss the indictment
arguing that the case involved a civil matter concerning the sale
of a horse and a dispute about money owed to Shelly by his brother.
The trial court denied the motion stating the Commonwealth could
establish a prima facie case of theft by failure to make required
disposition by showing Shelly received money with an obligation to
transfer the proper title of ownership to the horse through a sale
of his interest to Susan Stahl Robbins.
At the one-day trial, Susan Stahl Robbins, Norman Robbins
and Shelly Robbins testified.
The jury found Shelly guilty of
theft by failure to make required disposition of property valued at
$300.00 or more and recommended a sentence of five years.
On April 5, 2001, Shelly filed and served three motions
including a motion “to vacate the judgment of conviction and
dismiss this case for failure of the indictment to charge an
offense” based on Commonwealth v. Jeter,5 a motion to set aside the
conviction and enter a judgment of acquittal based on insufficient
5
Ky. App., 590 S.W.2d 346 (1979).
-4-
evidence, and a motion for a new trial because the case was based
on a legal theory not supported by the statute he was charged with
violating.
The circuit court considered these motions at the
sentencing hearing on July 20, 2001.6
After denying the motions,
the circuit court sentenced Shelly to five years’ imprisonment but
suspended imposition of imprisonment and placed him on probation
for a period of five years.
Shelly
raises
This appeal followed.
three
issues
on
appeal
involving
the
sufficiency of the indictment, the sufficiency of the evidence, and
a variance between the indictment and the jury instructions. These
issues were also presented in Shelly’s post-trial motions.
As an
initial matter, it appears that the latter two issues were not
properly
preserved
for
review.
A
motion
for
a
judgment
of
acquittal under Kentucky Rules of Criminal Procedure (RCr) 10.24 or
a motion for a new trial under RCr 10.02, other than for newly
discovered evidence, must be served within five days after the
return of the verdict.7
acquittal
(sometimes
In addition, a motion for judgment of
referred
to
as
a
motion
for
Judgment
Notwithstanding the Verdict or J.N.O.V.) is available only if the
defendant has moved for a directed verdict of acquittal at the
6
Unfortunately, the only videotape recording in the
appellate record is that of the trial. It does not include the
November pretrial hearing or the sentencing hearing.
7
See Ky. R. Crim. Proc. (RCr) 10.24; RCr 10.06; and
Shadowen v. Commonwealth, Ky., 82 S.W.3d 896 (2002)(pursuant to RCr
1.10(a) the day of the event and intervening weekend days and legal
holidays are not included in the time computation for a new trial
motion).
-5-
close of all the evidence.8
Shelly moved for a directed verdict at
the close of the Commonwealth’s case but did not move for a
directed verdict at the close of his case.
Thus, the motions for
a new trial and J.N.O.V. were untimely, and the latter was also not
available because of Shelly’s failure to move for a directed
verdict at the close of all the evidence.
On the other hand, the issue of whether the indictment
charged
an
offense
is
properly
subject
to
appellate
review.9
Although counsel did not reference a particular rule of procedure
for his motion to vacate and dismiss the indictment for failure to
charge an offense, it may be treated as a renewal or supplement to
his earlier motion to dismiss the indictment.
Moreover, unlike an
objection based on a defect in the indictment10 which must be raised
by motion prior to trial, a defense or objection based on failure
of the indictment to charge an offense may be raised “at any time
during the proceedings.”11
Shelly relies on Commonwealth v. Jeter, for the position
that his conduct did not constitute theft by failure to make
required disposition under KRS 514.070.
pre-paid
money
for
various
household
In Jeter, several persons
appliances
at
the
All
Furniture Sales Store, owned by Jeter, that were never delivered.
8
See RCr 10.24; Baker v. Commonwealth, Ky., 973 S.W.2d 54,
55 (1998); Commonwealth v. Pevely, Ky. App., 759 S.W.2d 822 (1988).
9
See, e.g., RCr 10.12.
10
See RCr 6.10.
11
RCr 8.18.
See also Thomas v. Commonwealth, Ky., 931
S.W.2d 446, 449 (1996); Casey v. Commonwealth, Ky. App., 994 S.W.2d
18 (1999); Fulton v. Commonwealth, Ky. App., 849 S.W.2d 553 (1992).
-6-
The Court held that theft by failure to make required disposition
did not cover the type of fact pattern described above. It stated:
We agree with the decision of the Fayette
Circuit Court and certify that K.R.S. 514.070 does not
proscribe
the
type
of
transaction
whereby
a
seller
accepts money for the purchase of merchandise and then
refuses to deliver the property as promised. The statute
was instead enacted to penalize the misapplication of
property received from another.12
The
Court
noted
that
Jeter’s
alleged
actions
more
properly
supported an indictment for theft by deception under KRS 514.040.
In its post-judgment order denying the motion to dismiss,
the trial court rejected Shelly’s position finding the factual
situations and decisions in Butts v. Commonwealth13 and Commonwealth
v. Taylor14 more apposite.
In Butts, Butts was the general manager
of Sentry Electronics, Inc., which was a business selling home
security systems.
The Court upheld his conviction for theft by
failure to make required disposition where he failed to return
money owed to customers.
The Court held that as an agent of the
corporation, he was liable for crimes he committed for the benefit
of or in the name of the corporation “‘as if the conduct were
performed in his own name or behalf.’”15
It stated that Butts
12
Supra, n. 5, at 347-48.
13
Ky., 581 S.W.2d 565 (1979).
14
Ky., 799 S.W.2d 818 (1990).
15
Supra, n. 13, at 567 (quoting KRS 502.060).
-7-
illegally converted the customers’ money to the corporation’s
benefit.
In Taylor, the Court affirmed Taylor’s conviction of
eight counts of theft by failure to make required disposition where
acting as an insurance agent, he collected $24,000.00 in insurance
premiums from clients and spent the money rather than remit it to
the insurance company.
We agree with Shelly that the case of Commonwealth v.
Jeter is more closely on point and the trial court’s reliance on
Butts and Taylor is misplaced.
The trial court analogized the
situations in Butts and Taylor by characterizing the current action
as involving “a failure to transfer a partnership asset to a third
party after the payment of a sum certain in money.”
The trial
court’s application of KRS 514.070 misapprehends the intent and
scope
of
the
statute.
Theft
by
failure
to
make
required
disposition requires action by a party who obtains property on
behalf of and which is intended by the payor to be transferred to
a third party. It is the defendant’s role or position as the
middleman or conduit for transfer of property from one party to
another that distinguishes this offense from other types of theft.
Where the defendant is the owner of the property that has been or
is expected to be received by the payor, the defendant is acting in
a direct relationship with the payor rather than as a fiduciary for
two other parties.
The current case deals with a single transaction between
two parties.
As in Jeter, it involves the sale of property owned
by the defendant to a second party, rather than the obtaining of
money and failure to transfer that money by the defendant to a
-8-
third party as in Butts and Taylor.
Despite the trial court’s
characterization of Norobbinthelady as a partnership asset, Shelly
was selling his separate ownership interest and was not acting as
a conduit or on behalf of any alleged partnership entity.
While
Shelly may possibly have been subject to prosecution for theft by
deception under KRS 514.040, his conduct as described in the
indictment did not fall within the parameters of the theft by
failure to make required disposition statute.
Accordingly, the
trial court erred in failing to dismiss the indictment for failure
to charge an offense.
The judgment is reversed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Clay
Danville, Kentucky
Albert B. Chandler III
Attorney General
Janine Coy Bowden
Assistant Attorney General
Frankfort, Kentucky
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
