ROBERT MICHAEL PERRY v. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 3, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002644-MR
ROBERT MICHAEL PERRY
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH MCDONALD-BURKMAN, JUDGE
ACTION NO. 00-CR-002245
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; DYCHE and JOHNSON, JUDGES.
JOHNSON, JUDGE:
Robert Michael Perry has appealed from the
judgment of conviction and sentence entered by the Jefferson
Circuit Court on September 7, 2004, which, following a bench
trial, convicted him of three counts of theft by failure to make
required disposition of property over $300.00,1 and sentenced him
to three, concurrent, five-year prison terms to be probated for
five years.
Perry argues that the evidence was insufficient to
support his conviction, that the trial court improperly applied
1
Kentucky Revised Statutes (KRS) 514.070(1).
fiduciary duty principles from civil law in finding him guilty
of a criminal offense, and that the amount of restitution he
owes was improperly calculated.
Having concluded that the
Commonwealth presented sufficient evidence to establish Perry’s
guilt and the amount of restitution, we affirm.
Perry was indicted by a Jefferson County grand jury
on October 17, 2000, for eight counts of theft by failure to
make required disposition of property over $300.00.
The charges
arose from a relationship Perry had with Minnie Gunn.
Specifically, Perry was charged with failing to make the
required disposition of Gunn’s Phillip Morris disability income
(Count I), Gunn’s Social Security disability income (Count II),
Gunn’s 1983 Mercedes Benz 300D (Count III), furniture and
furnishings belonging to Gunn (Count IV), jewelry belonging to
Gunn (Count V), Gunn’s home (Count VI), fire insurance proceeds
on Gunn’s home following a fire in 1992 (Count VII), and fire
insurance proceeds on Gunn’s home following a fire in 1993
(Count VIII).
On April 20, 2004, Perry was tried on all eight counts
in the indictment in a bench trial before the Jefferson Circuit
Court.
Count II was dismissed by the trial court on Perry’s
motion for a directed verdict.
After the parties filed post-
trial briefs, the trial court on July 20, 2004, entered its
findings of fact, conclusions of law, and judgment. Perry was
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found not guilty of Counts III, IV, V, and VI, and guilty of
Counts I, VII, and VIII.
Perry was sentenced on September 7,
2004, to five years’ imprisonment on each of the three
convictions for theft by failure to make required disposition of
property, with the sentences to run concurrently for a total of
five years.
The sentence was probated for a period of five
years, and Perry was ordered to pay restitution in the amount of
$79,447.11.2
This appeal followed.
Perry met Gunn when he attended the University of
Kentucky in the late 1970’s with Gunn’s daughters and he moved
into Gunn’s home in the early 1990’s.
Perry resided in Gunn’s
home with Gunn, her daughter Chandra Crutcher (whom Perry
eventually married) and Gunn’s grandson, Clifford Crutcher.
Perry lived in Gunn’s home until August 1992, when the home was
damaged by a fire.
In August 1992 Gunn was sentenced to five years in
federal prison on convictions unrelated to the present matter.
Prior to going to prison, in July 1992 Gunn appointed Perry her
attorney-in-fact under a General Power of Attorney.
The General
Power of Attorney stated in relevant part as follows:
[I]t is my [Minnie Gunn’s] desire
to appoint him [Robert Perry] to
2
Perry filed a motion to vacate or to amend pursuant to Kentucky Rules of
Criminal Procedure (RCr) 10.02, which was denied except to the extent an
order entered on November 24, 2004, ordered him to pay a minimum of $400.00
per month in restitution with his probation being extended if restitution was
not paid in full within five years.
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act with full power for me and in
my name and stead; to make
contracts, lease, sell, or convey
any real or personal property that
I may now or hereafter own; to
receive and receipt any money
which may now or hereafter be due
to me; to retain and release all
liens on real and personal
property; to draw[,] make and sign
any and all checks, contracts, or
agreements; to invest or reinvest
my money for me; to institute or
defend suits concerning my
property or rights, and generally
to do and perform for me and in my
name all that I might do if
present[.]
Gunn went to prison on August 19, 1992, and was released on
December 20, 1996.
The charges against Perry in the present
matter pertain to his disposition of Gunn’s property while she
was incarcerated.
Since Gunn died before Perry’s trial, the Commonwealth
played a videotape of Gunn’s May 17, 1999, testimony in a civil
trial of a lawsuit she brought against Perry for breach of
fiduciary duty and failure to account for certain money and
property as her fiduciary.
The Commonwealth also played a
videotaped deposition of Gunn taken on February 15, 2001.
Gunn
testified that she appointed Perry her attorney-in-fact because
she was going to prison and stated that she instructed Perry to
sell her house and to use the proceeds of the sale to pay off
her mortgage and to pay the attorney who represented her in the
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federal criminal proceedings.
Any remaining funds were to be
used to pay off Gunn’s other outstanding bills.
As noted, Gunn’s house was damaged by fire in August
1992.
Following the fire, Gunn, Perry, Chandra, and Clifford
moved into an apartment.
Very shortly thereafter, Gunn went to
prison and pursuant to Gunn’s General Power of Attorney, Perry
received insurance proceeds as a result of the fire in the
amount of $43,000.00.3
Approximately a year later, a second fire
occurred at the home and Perry, again pursuant to the General
Power of Attorney, received additional insurance proceeds in the
amount of $40,000.00 for structural damage to the home.
While
Gunn was incarcerated, Perry also received her pension check
from Phillip Morris in the amount of $197.29 per month.
Gunn
testified that she instructed Perry to use this money to pay off
the lien against her automobile so Chandra would have a vehicle
to drive.
Gunn further testified that since she was
incarcerated and no longer eligible for Social Security
disability benefits, she instructed Perry to have her Social
Security disability check of $746.00 per month stopped.
Gunn testified that when she was released from prison
her house had been foreclosed upon and sold, her vehicle had
been repossessed, her bank account was overdrawn by $1,200.00,
and she had no assets remaining.
Gunn stated that she had not
3
$24,778.00 was for damaged contents and the remaining $18,222.00 for damage
to the structure.
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received any of the insurance proceeds dispersed after the two
house fires.
Gunn also testified that she had not authorized
Perry to pay himself out of her assets, to use her money for
personal expenditures, or to write checks on her bank account to
himself.
Perry testified that he received the insurance
proceeds following the fires at Gunn’s residence in 1992 and
1993.
He stated that he received one check in the amount of
$18,222.00 and paid $500.00 out of that amount for something he
could not recall.
The balance of $17,722.00 was deposited into
Gunn’s bank account, and Perry wrote a check to himself in that
amount on September 10, 1992.
Perry testified that he used some
of the money to pay contractors working on Gunn’s fire-damaged
house, but he did not get any receipts for the payments and kept
limited records.
Perry further testified that he received a
second insurance check for the 1993 fire in the amount of
$24,778.00, and he acknowledged that he lost approximately
$24,000.00 of the fire insurance proceeds he received through
securities trading.
Perry admitted that the trading account was
not set up in Gunn’s name, but he testified that Gunn understood
he was investing her money in an attempt to make money for her.
Perry testified that he hired contractors to repair
Gunn’s house following the 1992 fire, and that repairs were
completed in January 1993.
He further testified that he had
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repair work done to the house following the fire in 1993.
Perry
produced seven checks he wrote to contractors for work performed
on the house, but stated that he did not have all the records
for the money he spent on the repair work.
He also testified
that between 1992 and 1994 he made one mortgage payment on
Gunn’s home in the amount of $440.00.
Perry argued at trial that the purpose of the
appointment he received under Gunn’s General Power of Attorney
was to insure that Chandra, Clifford, and he maintained the
lifestyle they had enjoyed prior to Gunn’s going to prison.
He
claimed that he was not obligated to pay Gunn’s mortgage, but
paid as much as possible.
Finally, Perry argued that he used
most of Gunn’s funds to take care of Gunn’s daughter, Chandra,
and grandson, Clifford.
On appeal, Perry claims the trial court erred in
finding him guilty on any of the counts of theft by failure to
make required disposition of property because the evidence was
insufficient to support a finding of guilt, and that the trial
court improperly applied principles of fiduciary duty from civil
law regarding his inability to account for Gunn’s property and
money.
Additionally, he argues that the trial court erred in
calculating the amount of restitution he should pay to Gunn’s
estate.
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When reviewing a case tried by the trial court without
a jury, the trial court’s findings of fact will not be disturbed
unless clearly erroneous.
Findings of fact are not clearly
erroneous if they are supported by substantial evidence.4
“‘Substantial evidence’ is evidence of substance and relevant
consequence sufficient to induce conviction in the minds of
reasonable people.”5
The trial court’s conclusions of law,
however, are subject to de novo review on appeal.6
Likewise, on
a motion for a directed verdict, the trial court is required to
view the evidence in the light most favorable to the
Commonwealth and must draw all fair and reasonable inferences
from the evidence in favor of the Commonwealth.7
A directed
verdict should be granted to the defendant only if the
Commonwealth produces evidence of guilt insufficient to induce a
reasonable person to believe beyond a reasonable doubt that the
defendant is guilty.8
Perry asserts that the trial court improperly presumed
him guilty due to his failure to account for Gunn’s money and
property, and that the Commonwealth failed to meet its burden of
4
See Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409 (Ky. 1998);
and Gosney v. Glenn, 163 S.W.3d 894 (Ky.App. 2005).
5
Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.App. 2002).
6
Gosney, 163 S.W.3d at 898.
7
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
8
Id. at 187 (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983); and
Trowel v. Commonwealth, 550 S.W.2d 530 (Ky. 1977)).
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proof regarding Perry’s disposition of Gunn’s property.
However, the Commonwealth was required only to produce evidence
that Perry received Gunn’s money or property pursuant to an
agreement or known legal obligation and failed to make the
disposition of the assets as required by the agreement or legal
obligation.
The evidence showed that Perry received the pension
benefits and the insurance proceeds, but the money was not
disposed of pursuant to the agreement as explained by Gunn.
Perry admitted that at least $24,000.00 was lost through
securities trading.
The remainder of Gunn’s funds from the fire
insurance proceeds and her Phillip Morris pension were largely
unaccounted for; however, the evidence showed that Gunn’s
vehicle was repossessed and her home foreclosed upon.
When Gunn
contacted Perry while she was in prison and asked about the
status of the fire insurance proceeds, he lied to her and denied
having received the money.
This evidence certainly supported
the reasonable inference that Perry did not dispose of Gunn’s
money in a way to protect the assets she testified she directed
him to protect.
Perry testified he used the money he received
as directed, but he had only limited records of his
transactions.
The trial court, as any finder of fact, was
entitled to weigh the credibility of Perry’s and Gunn’s
testimony and it was not bound by Perry’s exculpatory
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explanations.9
The record contains more than substantial
evidence to support the trial court’s finding of guilt in regard
to the pension benefits and the fire insurance proceeds.
Perry also claims the trial court incorrectly
calculated the amount of restitution he owes to Gunn’s estate as
a result of his failure to make the required disposition of her
property.
Perry asserts that he should be given a credit, or a
set-off, from the amount of restitution equal to the amount
Gunn’s residence sold for at foreclosure.
The trial court ordered Perry to pay $79,447.11 in
restitution.
This amount was comprised of the total of the
insurance proceeds Perry received while Gunn was incarcerated
($83,000.00) plus the amount of pension proceeds he received
($6,132.11) for a total of $89,354.11, less $9,907.00 for the
amount Perry showed he actually spent as directed by Gunn.
We
reject Perry’s contention that he is entitled to a credit or a
set-off for the amount Gunn’s house sold for at foreclosure.
The legislative intent behind ordering restitution is
to make the victim whole and to recoup the full amount lost.10
Perry was given ample opportunity to controvert the
Commonwealth’s allegations concerning the amount of restitution
and he was given full credit for the amount shown to be disposed
9
10
Armstrong v. Commonwealth, 517 S.W.2d 233, 235 (Ky. 1974).
Hearn v. Commonwealth, 80 S.W.3d 432, 436 (Ky. 2002).
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of properly.11
The record below contains more than an “adequate
factual predicate” for the trial court’s restitution order,12 and
we decline Perry’s invitation to speculate regarding the fair
market value of Gunn’s home at the time of the foreclosure sale
and the amount of repair work actually done to the home.
The
trial court’s determination of the amount of restitution owed
was supported by substantial evidence and not clearly
erroneous.13
Based upon the foregoing, the judgment and sentence of
the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
Christopher A. Bates
Louisville, KY
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
11
See Fields v. Commonwealth, 123 S.W.3d 914 (Ky.App. 2003).
12
Id. at 918.
13
Hearn, 80 S.W.3d at 436.
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