FRANKLIN D. FRANKLIN v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED:
JANUARY 14, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000811-MR
FRANKLIN D. FRANKLIN
APPELLANT
APPEAL FROM BOURBON CIRCUIT COURT
HONORABLE ROBERT OVERSTREET, JUDGE
ACTION NO. 01-CR-00022
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Franklin D. Franklin has appealed from the
judgment and sentence of the Bourbon Circuit Court entered on
January 24, 2003, following a bench trial, finding him guilty of
receiving stolen property valued at $300.00 or more1 and
sentencing him to a term of imprisonment of one year, probated
for three years.
Having concluded that it was not clearly
unreasonable for the trial court to find Franklin guilty, we
affirm.
1
Kentucky Revised Statutes (KRS) 514.110.
This case arose in the summer of 2000 in Bourbon
County, Kentucky, where Franklin owns three farms.
One of
Franklin’s farms adjoins the farm of Brian Williams.
Franklin and Williams raise cattle.
Both
On July 31, 2000, Williams
noticed that two of his bulls were missing.
One bull was a
Black Angus and the other was a white-faced Simmental
crossbreed.
The two bulls had wandered from their field six to
ten times before and Williams had always found them in a
neighbor’s field.
However this time, after searching his
neighbors’ fields for a couple of days, he was unable to find
them.
On the evening of August 1, 2000, Williams drove to
the adjoining farm belonging to Franklin, where he encountered
Joe Bishop.
Bishop managed the farm for Franklin and lived on
the Franklin farm that adjoined Williams’s property.
Williams
asked Bishop if he had seen his two bulls, and Bishop said he
had not seen them.
When Williams asked Bishop where Franklin’s
cattle were, he said they were being hauled to auction at a
stockyard in Mt. Sterling by a man named “Terry”.
Bishop said
that Franklin was going to be out of town until August 5, 2000.
On August 5, 2000, Williams went to the stockyard in
Mt. Sterling, and he was told that Franklin had not sold any
cattle there for the last three sales.
Later that day, Williams
saw Franklin at a farm store, and explained to Franklin that he
-2-
was missing two bulls and he was concerned that they had gotten
mixed in with Franklin’s cattle that had been hauled to auction.
Williams explained his visit to the stockyard in Mt. Sterling
and he asked Franklin where Franklin’s cattle had been taken.
Franklin claimed that he did not know where “Terry” had taken
his cattle, but he agreed to check his records so he could
locate Terry and find out where his cattle had been auctioned.
Franklin failed to get back in contact with Williams,
but Williams got an anonymous telephone call on August 7, 2000,
stating that the man who hauled his cattle was named Terry
Crouch.
Williams called Crouch, who told him that he and his
partner, Danny VanLandingham, had hauled Franklin’s cattle to
the stockyard in Paris.
Terry and Danny both stated that they
had noticed a white-faced bull with Franklin’s cattle.
They
also said that Franklin and Bishop came to the Paris stockyard
twice before the auction on August 3-– once on August 1, the day
the cattle were delivered, and once on August 3, the day of the
auction.
They said that on both of these occasions Franklin and
Bishop were close enough to the cattle to have noticed the
white-faced bull.
Upon learning this information, Williams
contacted the Kentucky State Police and their investigation led
to the arrest of Franklin and Bishop.
On April 10, 2001, a Bourbon County grand jury
indicted Franklin on one count of receiving stolen property
-3-
alleging that he had “retained or disposed of a bull recently
stolen from Brian Williams.”
Franklin entered a plea of not
guilty, and he and a co-defendant, Joe Bishop, were tried before
the court on August 2, 2002.
and found Franklin guilty.
The trial court acquitted Bishop
On January 24, 2003, the trial court
entered the judgment of conviction and sentenced Franklin to
prison for a term of one year, probated for three years.2
This
appeal followed.
Franklin argues that the trial court erred by
convicting him based on insufficient evidence.
three arguments:
Franklin makes
(1) “elements of KRS 514.050, with which
Defendant was not charged, [were used] to establish guilt of KRS
514.110”; (2) “every essential element” of receiving stolen
property was not proven; and (3) the circumstantial evidence
relied upon by the trial court constituted no more “than a mere
suspicion”.
KRS 514.110 defines the offense of receiving stolen
property, in part, as follows:
(1)
A person is guilty of receiving stolen
property when he receives, retains, or
disposes of movable property of another
knowing that it has been stolen, or
having reason to believe that it has
been stolen, unless the property is
received, retained, or disposed of with
intent to restore it to the owner.
2
Franklin filed a motion for a new trial on August 7, 2002, which was not
ruled upon until its denial on December 10, 2002.
-4-
(2)
The possession by any person of any
recently stolen movable property shall
be prima facie evidence that such
person knew such property was stolen.
(3)
Receiving stolen property is a Class A
misdemeanor unless the value of the
property is three hundred dollars
($300) or more, in which case it is a
Class D felony[.]
Franklin complains that in finding him guilty of
receiving stolen property under KRS 514.110, the trial court
made reference to the offense of theft of property lost.
514.050 provides as follows:
(1)
Except as provided in KRS 365.710, a
person is guilty of theft of property
lost, mislaid, or delivered by mistake
when:
(a)
(b)
(2)
He comes into control of the
property of another that he knows
to have been lost, mislaid, or
delivered under a mistake as to
the nature or amount of the
property or the identity of the
recipient; and
With intent to deprive the owner
thereof, he fails to take
reasonable measures to restore the
property to a person entitled to
have it.
Theft of property lost, mislaid, or
delivered by mistake is a Class A
misdemeanor unless the value of the
property is three hundred dollars
($300) or more, in which case it is a
Class D felony.
-5-
KRS
Franklin argues that the trial court erred “by
permitting elements of KRS 514.050, with which Defendant was not
charged, to establish guilt of KRS 514.110[,]” but he fails to
cite any legal authority to support his argument.
The flaw in
Franklin’s argument is that the Commonwealth does not have to
prove that a defendant stole property to convict him of
receiving stolen property.
KRS 514.110 requires a showing that
the defendant received, retained, or disposed of movable
property of another knowing that it had been stolen.
Kentucky’s
statutes on theft of property include KRS 514.030, theft by
unlawful taking or disposition; KRS 514.040, theft by deception;
KRS 514.050, theft of property lost; KRS 514.070, theft by
failure to make required disposition of property; and KRS
514.080, theft by extortion.
The identity of the owner of the
property and the circumstances surrounding its theft are not
controlling elements in the crime of receiving stolen property.
Rather, “knowledge of the property’s dishonest origin, without
any necessity of a further particularity in relation thereto, is
the gist of this crime.”3
Thus, the fact that the bull was lost
and had come into the control of another person was sufficient
3
Decker v. Commonwealth, 198 S.W.2d 212, 214 (Ky. 1946). See also Magruder
v. Commonwealth, 281 S.W.2d 716, 719 (Ky. 1955) (noting that knowledge that
the property was stolen is the controlling element); and Allison v.
Commonwealth, 83 Ky. 254 (1885) (stating that “[i]t is not necessary, in
order to convict of [receiving stolen property], that the guilt of the person
who stole the property shall be first established, nor his name to be known
or even stated in the indictment, or to prove the accused to be in any way
connected with the larceny.”)
-6-
to establish that a theft of property lost had occurred.
Since
the bull was lost property which became stolen movable property,
this element of KRS 514.110 was properly established.
Franklin also argues that “[t]he Commonwealth failed
to meet its burden of proving every essential element of the
crime of Receiving Stolen Property.”
Franklin contends that
since the bull had “escaped” on “five, six or maybe ten”
occasions that there was no evidence that it had been stolen.
This argument is negated by the trial court’s reliance on the
theft of lost property statute for establishing the element of
the bull being stolen property.
KRS 514.050 provides that a
person is guilty of theft of property lost when he comes into
control of the property of another that he knows to have been
lost.
The evidence presented by the Commonwealth that the bull
left Williams’s farm and ended up on Franklin’s farm was
sufficient to establish that the bull was lost property.
The
Commonwealth was not required to prove the detailed
circumstances of how this occurred to show that Franklin
disposed of Williams’s bull knowing that it had been lost.4
Franklin’s final argument is that the circumstantial
evidence relied upon by the trial court constituted no more than
a mere suspicion of his guilt.
against him as follows:
4
Franklin summarizes the evidence
(1) Franklin and Williams owned
Decker, 198 S.W.2d at 214.
-7-
adjoining farms; (2) Williams’s cattle had previously wandered
from Williams’s farm on five, six, or maybe, ten occasions; (3)
Franklin’s farm was being managed by co-defendant, Bishop, who
lived on the premises; (4) Franklin’s presence on the farm is
not established for the period in question from July 26, 2000,
through August 1, 2000; and (5) Franklin had visited the
stockyard prior to the sale, which presented Franklin with the
opportunity to have observed Williams’s bull.
However, the
Commonwealth points out that there was other evidence that the
trial court could rely on in making an inference that Franklin
disposed of the bull knowing that the bull had been lost.
Evidence of record included testimony from Williams that the
bull was a white-faced Simmental crossbreed that also had white
under part of its body, that Bishop and Franklin both told
Williams that Franklin’s cattle had been taken to a stockyard in
Mt. Sterling instead of Paris, that Franklin had an opportunity
at the Paris stockyard to view his cattle that were to be
auctioned, and that after Williams told Franklin that his bull
may have been sent to auction with Franklin’s cattle by mistake
that Franklin made no attempt to investigate this claim.
The trial judge, as the fact-finder, heard the
witnesses testify and he was in the best position to judge their
credibility.
In finding Franklin guilty, the trial judge
summarized the evidence and his findings as follows:
-8-
Between the time that Traveler strayed
onto the Franklin property, was there ample
opportunity for Mr. Franklin and his
employee to have seen Traveler mixed in with
the herd and to have realized that they had
somehow come into control of that property
before it was sold[?] The testimony is that
the bull was missing July 26th, I believe,
sometime between that time and the time it
was taken to the Stockyards, did Mr.
Franklin have an opportunity, should he have
seen the cow—or the bull, I’m sorry, I don’t
want to call him a cow and affect his
sensibility, or on the August 1st delivery
to the Stockyards, the August 3rd deadline,
did they have an opportunity to notice that
this white-faced cow was in their
consignment of wholly black cattle. That’s
frankly where I hang up. Up until now, this
could have been a happenstance sort of
thing. This cow, this bull could [have]
gotten mixed in the herd and very
innocently, probably, have been sold without
anybody knowing it. But I find it stretches
my sense of credulity, I believe is the word
that has been used here today, to believe
that Mr. Franklin had that many
opportunities, and his employee had that
many opportunities to know that there was
not a stranger in the herd, there, that must
have stuck out like a sore thumb. And I
believe that somewhere in those three
opportunities lasting some five or six days,
that somebody should have noticed that this
all black herd had a white-faced cow in it,
which it undoubtedly did.
These things about telling Mr. Williams
that the cows were being sold in Mt.
Sterling when in fact they were being sold
in Paris, not knowing that there were two
additional, or at least one additional cow
in the herd, no[t] knowing when they got the
check that the check was probably way too
much for the number of cattle that they had
consigned, all these things make me believe
that somebody knew that these cattle were
-9-
not Mr. Franklin’s cattle, and were lost and
mislaid.
Who knew this and what effect does it
have on these charges? Well, I don’t think
there’s any conclusion other than Mr[.]
Franklin must have known. To believe that
he visited the Stockyards twice concerning
the consignment of the cattle, to believe
that he had these cattle on his pasture less
than a week before he was taking them to the
Stockyards to sell, and to believe that he
had not noticed that one of them was not
his, couldn’t have been his, is just
impossible for me to swallow.
So I believe Franklin Franklin is
guilty of the offense of Receiving Property
Over $300 in Value.
Our standard of review of a trial court’s denial of a
motion for a directed verdict of acquittal is well-established:
On a 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 [factfinder] to believe beyond a reasonable doubt
that the defendant is guilty, a directed
verdict should not be given. For the
purposes of ruling on the motion, the trial
court must assume that the evidence for the
Commonwealth is true, but reserving to the
[fact-finder] 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 [fact-finder] to find guilt, only then
the defendant is entitled to a directed
verdict of acquittal.5
5
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
-10-
“[I]n evaluating whether or not a directed verdict
should have been granted in cases involving circumstantial
evidence,” a different standard is not required.6
A conviction
may be based upon circumstantial evidence when the evidence
taken as a whole is of such character that a reasonable person
would be justified in concluding that a person is guilty beyond
a reasonable doubt.7
Thus, based on the evidence previously
discussed, we conclude that the evidence was sufficient to
support the trial court’s finding of Franklin guilty of
receiving stolen property.
Based on the foregoing, the judgment and sentence of
the Bourbon Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Guy F. Ormsby, Jr.
Paris, Kentucky
Gregory D. Stumbo
Attorney General
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
6
Commonwealth v. Collins, 933 S.W.2d 811, 815 (Ky. 1996).
7
Bussell v. Commonwealth, 882 S.W.2d 111, 114 (Ky. 1994).
-11-
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.
