PATRICIA ANN TIA v. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 9, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-002231-MR
PATRICIA ANN TIA
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
INDICTMENT NO. 01-CR-00484
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON and JOHNSON, Judges.
HUDDLESTON, Judge: Patricia Ann Tia appeals from a Fayette Circuit
Court judgment sentencing her to twelve months in jail following a
jury verdict finding her guilty of the unauthorized use of a motor
vehicle.1
1
Although the relevant statute uses different language,
“unauthorized use of a motor vehicle” is the phrasing used
throughout the record and the charge will be referred to as such in
this opinion.
Ky. Rev. Stat. (KRS) 514.100, Unauthorized use of
automobile or other propelled vehicle, provides, in relevant part,
as follows:
(1) A person is guilty of the unauthorized use of an
automobile or other propelled vehicle when he knowingly
(continued...)
Carolyn Wehrle, the victim, ministers to jail inmates.
Tia, a recovering drug addict, was a client of Wehrle’s that she
had been acquainted with for approximately two years at the time of
the incident in question.
Wehrle was responsible for placing Tia
in a drug rehabilitation program in Michigan which Tia “passed with
flying colors.”
When Tia’s grandmother passed away, she returned to
Kentucky for the funeral. Tia’s mother and Wehrle arranged to meet
after
the
Lexington.
funeral
Tia
so
that
was
Wehrle
supposed
to
could
take
give
a
Tia
bus
a
back
ride
to
to
the
rehabilitation center on March 10, 2001, in order to begin a job
there on March 12, 2001.
While in Lexington, Tia stayed with the
Gandolfos, mutual friends of the two women.
She planned to stay
with Wehrle from March 8, 2001, until her departure date.
Wehrle
was in possession of Tia’s bus ticket during her visit.
The Gandolfos were scheduled to leave on a trip on
March 8, and Wehrle had agreed to drive them to the airport.
That
evening, however, Wehrle was busy, so Tia volunteered to give the
Gandolfos a ride.
Wehrle loaned Tia her van as Tia did not have
access to a vehicle. Although Tia had mentioned the possibility of
borrowing the van to visit friends during a conversation with
Wehrle which took place earlier in the day, Wehrle did not respond
and there was no discussion of Tia using the van for that purpose
before she departed for the airport.
1
According to her testimony,
(...continued)
operates, exercises control over, or otherwise uses such
vehicle without consent of the owner or person having
legal possession thereof.
-2-
Wehrle expected Tia to return the van later that same day, although
she did not specify which route Tia was to take or exactly how long
she could keep the van.
Tia never returned the van or contacted
Wehrle.
On March 9, 2001, Wehrle notified the police and began
looking for the van.
According to Wehrle, she became concerned
about Tia and accompanied police in search of the van, but efforts
to locate it were unsuccessful.
Wehrle called Tia’s mother on
March 10, 2001, in an attempt to ascertain her whereabouts, but her
mother had not heard from her.
Between March 10 and March 12,
Wehrle contacted the Michigan rehabilitation center and learned
that Tia had not returned.
Wehrle filed a criminal complaint against Tia on March
12, 2001, alleging a violation of Kentucky Revised Statutes (KRS)
514.070,2
theft
by
failure
to
make
required
disposition
of
property, a class D felony when, as here, the value of the property
exceeds $300.00.
In the complaint, Wehrle indicated that she had
loaned her van to Tia on March 8, 2001, to take a friend to the
airport; Tia took said friend to the airport and was supposed to
return the van after that errand; Tia disappeared with said van and
2
KRS 514.070 in relevant part, reads 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.
-3-
has not informed her family or Wehrle as to her whereabouts or the
location of the van; and that Tia failed to show for her job on
March 10, 2001, and no one knows her whereabouts. Wehrle estimated
the value of the van to be $30,000.00.
On March 15, 2001, at around 1:00 a.m., the police
located the van and had it towed to an impoundment lot.
Wehrle
then had it towed to the dealership where she purchased it.
She
later testified that the van sustained approximately $2,100.00 in
damage.
Tia was arrested on the corner of North Broadway and
Seventh Street in Lexington, Kentucky, on March 27, 2001.
In May
2001, a Fayette County Grand Jury returned an indictment against
Tia charging her with theft by failure to make required disposition
of property and persistent felony offender second degree.
At trial, Wehrle’s testimony was consistent with the
foregoing factual summary.3
Tia confirmed Wehrle’s version of
events, admitting that she did not return to Wehrle’s home upon
leaving the airport.
Instead, she went to visit an ex-boyfriend
and proceeded to search for a person named “Red” who lived on the
3
On redirect examination at trial, the Commonwealth had
Wehrle read a selected passage from the complaint aloud as well as
a portion of a redacted “affidavit of vehicle theft” (not in the
record). Wehrle attested to the fact that the signatures on the
documents are authentic. Counsel for both parties then approached
the bench, at which point the Commonwealth moved in limine to
preclude Tia from questioning Wehrle regarding the officer’s
initial classification of the incident as “unauthorized use of a
motor vehicle” (contained in the “information required to obtain
report” form), arguing that it was a legal conclusion with no
relevance and constituted hearsay. The defense sought to have the
related form admitted under the rule of completeness but the court
denied the request and granted the Commonwealth’s motion to
exclude, finding that the original assessment of the charge was
irrelevant as Tia was ultimately charged with a different crime.
-4-
other side of town.
According to Tia, she fell asleep at Red’s
residence while watching television.
When she awakened around
midnight, she noticed that the key to Wehrle’s van was missing from
her coat pocket along with $35.00.
She then looked outside for the
van and discovered that it was gone.
Tia claimed to have walked around the area looking for
the van.
At some point in the early morning hours, she met a man
named Charles with whom she decided to stay for several days.
Tia
also asserted that she suffered a relapse between March 15 and the
date of her arrest.
She conceded that she never called Wehrle, her
family or the rehabilitation center and admitted that she did not
consider calling the police.
At the conclusion of the Commonwealth’s case-in-chief,
Tia moved for a partial directed verdict, conceding that the
Commonwealth
had
presented
sufficient
evidence
to
submit
the
question of Tia’s guilt as to a charge of unauthorized use of a
motor vehicle to the jury,4 but arguing that the Commonwealth had
not proved that Wehrle was permanently deprived of the van, Tia
profited from its use or that she intended not to return it as
4
Under this instruction, the jury was told to find the
defendant guilty if it believed beyond a reasonable doubt:
A. That in Fayette County on or about 8th day of March,
2001 and within 12 months before the finding of the
Indictment herein, the Defendant knowingly operated,
exercised control over, and/or used a motor vehicle which
belonged to Ms. Carolyn Wehrle;
AND
B. That in so doing, the Defendant did not, and knew
that she did not, have the consent of Ms. Carolyn Wehrle
to do so.
-5-
required for a finding of guilt as to the theft charge.
The court
denied the motion but granted Tia’s request to instruct the jury on
the lesser-included offense of unauthorized use of a motor vehicle.
Ultimately, the jury found Tia guilty of unauthorized use of a
motor vehicle and recommended a sentence of twelve months to serve.
In
a
final
judgment
and
sentence
of
imprisonment
entered
on
September 19, 2001,5 the court adjudged Tia guilty of the lesserincluded
offense
and
imposed
an
indeterminate
maximum term of which shall be twelve months.”
sentence,
“the
The court also
dismissed the PFO charge and gave Tia credit for the 172 days spent
in custody prior to commencement of sentence.
Tia appeals from
that judgment.
Tia’s first argument on appeal is that she was entitled
to a directed verdict as to the theft charge since the Commonwealth
failed to produce sufficient evidence to withstand the motion.
begin
by
stating
the
long-standing
rule
regarding
We
directed
verdicts:
On motion for directed verdict, the trial court
must draw all fair and reasonable inferences from the
evidence in favor of the Commonwealth.
5
If the evidence
Having reviewed the pre-sentence investigation report and
“given due consideration to the nature and circumstances of the
crime, and the history character and condition of [Tia],” the court
considered sentencing alternatives but was of the opinion “that
imprisonment is necessary because there is substantial risk that
[Tia] will commit another crime during any period of probation or
conditional discharge, [Tia] is in need of correctional treatment
that can be provided most effectively by [her] commitment to a
correctional institution,” and “[p]robation or conditional
discharge would unduly depreciate the seriousness of [Tia’s]
crime,” given her prior criminal record, drug addiction, failure to
maintain regular employment and the “deliberate nature” of her
crime.
-6-
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.6
On appeal, “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;”7 only then would Tia have been entitled to a
directed verdict of acquittal.
A directed verdict is expressly
authorized
produces
if
the
prosecution
scintilla of evidence.”8
“no
more
than
a
mere
A review of the evidence presented in
this case leaves no doubt that the prosecution produced more than
“ a mere scintilla of evidence” and the court properly determined
that a reasonable juror could fairly find guilt beyond a reasonable
doubt.9
6
Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991).
7
Id.
8
Id. at 188 (emphasis supplied).
9
Of the six elements that the Commonwealth was required to
prove beyond a reasonable doubt with regard to the theft charge,
the only one Tia contested was E. which said that, in failing to
return the van to Wehrle, “[Tia] intended to deprive [Wehrle] of
the property and was not acting under a claim of right to the
property.” Because Tia did not return the van, it can be inferred
that she had the necessary intent. “[B]ecause a person is presumed
to intend the logical and probable consequences of his conduct, ‘a
person’s state of mind may be inferred from actions preceding and
following the charged offense.’” Hudson v. Commonwealth, Ky., 979
S.W.2d 106, 110 (1998)(citation omitted).
-7-
However,
it
is
unnecessary
to
elaborate
upon
this
conclusion given that Tia was found guilty of the lesser-included
offense of unauthorized use of a motor vehicle as opposed to the
theft charge. A jury’s guilty verdict on a lesser-included offense
represents an implied acquittal as to the greater offense, whereas,
an acquittal on a greater offense does not bar retrial on lesserincluded offenses upon which the jury was unable to reach a
verdict.10
ladder,
“The concept of acquittal by implication climbs up the
not
down.”11
Accordingly,
in
finding
Tia
guilty
of
unauthorized use of a motor vehicle, the jury simultaneously
acquitted her of the theft charge.
Assuming arguendo, that the
court should have granted Tia’s motion for a directed verdict, any
error in failing to do so was harmless and must be disregarded as
it does not constitute grounds for disturbing the final judgment
under Kentucky Rule of Criminal Procedure (RCr) 9.24.12
Similarly,
Tia’s contention that she was prejudiced by the jury instruction on
the theft charge has no merit as “conviction of lesser included
10
Commonwealth
v.
Ray,
Ky.
App.,
982
S.W.2d 671, 674
(1998).
11
Id. (citing McGinnis v. Wine, Ky., 959 S.W.2d 437, 439
(1998)).
12
Ky. R. Crim. Proc. 9.24 provides as follows:
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order,
or in anything done or omitted by the court or by any of
the parties, is ground for granting a new trial or for
setting aside a verdict or for vacating, modifying or
otherwise disturbing a judgment or order unless it
appears to the court that the denial of such relief would
be inconsistent with substantial justice. The court at
every stage of the proceeding must disregard any error or
defect in the proceeding that does not affect the
substantial rights of the parties.
-8-
offense renders the instruction on the greater offense harmless
error.”13
Tia’s remaining argument is that the court deprived her
of the right to develop her “defense and theory of the case,”
namely that she was authorized to borrow the van and that during
the period of authorized use, “the van was misappropriated by
another.”
precluding
In Tia’s estimation, the court effectively did so by
her
from
engaging
in
the
“ratification
line
of
questioning” with Wehrle which she contends would have enabled her
to establish that she was “acting as an agent of Wehrle and thus
there was no theft.”
Again, since Tia sought to present this
theory so as to refute the theft charge, any error is harmless.
However, to the extent this argument applies to the
lesser-included charge, it also fail on the merits.
At trial, Tia
emphasized the fact that Wehrle allegedly attempted to have the
charge reduced from theft to unauthorized use of a motor vehicle,
indicating that she did not wish to proceed with prosecution of the
greater offense.
In response, the Commonwealth explained that it
was the police officer who had initially listed the charge as
unauthorized use of a motor vehicle in his report and that both the
criminal complaint and indictment charged Tia with theft by failure
to make required disposition of property.
Upon hearing both arguments, the court agreed with the
Commonwealth that what the police initially charge an accused with
and what she is ultimately indicted for are two different things
and, in any event, Wehrle’s inclination to alter the charge after
13
Russell v. Commonwealth, Ky. App., 720 S.W.2d 347 (1986).
-9-
the fact would not serve to ratify Tia’s behavior.
In sum, the
court’s decision to preclude this line of questioning did not
prevent Tia from pursuing the agency/principal theory since the
initial charge by the police was irrelevant and she elicited
testimony from Wehrle on cross-examination which supported her
defense.
Apparently, the jury did not find her argument credible.
Because the jury verdict finding Tia guilty of the
lesser-included offense of unauthorized use of a motor vehicle
renders any error stemming from the theft charge harmless and her
substantive argument fails on the merits, the judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bobby Amburgey
Lexington, Kentucky
Albert B. Chandler III
Attorney General
N. Susan Roncarti
Assistant Attorney General
Frankfort, Kentucky
-10-
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