EMBRY (JAKE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: SEPTEMBER 12, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JAKE EMBRY, JR.
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
INDICTMENT NO. 06-CR-00132
COMMONWEALTH OF KENTUCKY
** ** ** ** **
BEFORE: CLAYTON, MOORE, AND TAYLOR, JUDGES.
MOORE, JUDGE: Jake Embry, Jr. appeals the Grayson Circuit Court’s judgment
convicting him of theft by unlawful taking over $300.00 and of being a persistent
felony offender in the first degree. On appeal, Jake argues that the trial court erred
in finding his intent to commit the theft of a radiator. Jake also argues that the trial
court erred in finding the value of the radiator to be over $300.00. After a careful
review of the record, we affirm the judgment of conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
A Grayson County Grand Jury indicted and charged Jake with theft by
unlawful taking over $300.00, a Class D felony under Kentucky Revised Statute
(KRS) 514.030. Jake was also charged with being a first-degree persistent felony
offender under KRS 532.080.
The case was tried before a jury, and the following pertinent facts
were adduced at trial. Thomas Glasscock is the co-owner of Lowe’s Concrete in
Leitchfield, Kentucky. The business is located on a large commercial lot and
Glasscock owns several buildings in the surrounding area, including a shop from
which he runs a trucking company and a closed-down Ready-Mix plant about 40
feet from his shop. In addition to the buildings, Glasscock owns and keeps some
heavy equipment, trucks, and forklifts on the property. A gravel driveway
connects two public roads on his lot.
Glasscock testified that parts and metals were scattered on his
property, most of which he stated was equipment that could not fit in the shop. He
acknowledged that the area in front of the Ready-Mix plant was littered with trash
and junk. Glasscock testified the items on his lot may or may not be of any use to
him, but all items were his property. Further, he indicated he does not permit
anyone to come onto his property and remove metal for scrap, as scrap has value
and he has at times sold it himself. Two dumpsters were on the lot, but he does not
allow the general public to dump trash anywhere on his property.
Glasscock also testified that some time before the theft in question,
the motor in one of his forklifts blew up. The forklift radiator was removed for
repair. Glasscock’s mechanics placed the radiator outside of his shop
approximately ten feet from its door. While it was near other junk, Glasscock
stated that the radiator was in good, working order.
Jake and Christina Embry were collecting scrap metal and machinery
on Glasscock’s property near the old Ready-Mix building. Glasscock was driving
past his property when he noticed the Embrys standing on his gravel driveway with
their car trunk and all four car doors open. Glasscock drove onto his property and
confronted Jake. Jake stated he was there collecting scrap metal and junk.
Glasscock saw his forklift radiator in Jake’s trunk. Glasscock told Jake that the
property was Glasscock’s, that Jake was trespassing, and that Jake could not take
the radiator or any other pieces of scrap metal from Glasscock’s property. Jake
apologized, removed the radiator from his car, and left the premises.
Glasscock wrote down Jake’s license plate number and identified Jake
through vehicle records. Glasscock then swore out a criminal complaint, and a
Grand Jury was assembled regarding the complaint. Glasscock testified to the
Grand Jury which indicted Jake. Trial consisted only of Glasscock’s testimony for
the Commonwealth and Christina Embry’s testimony for the defense.
After the close of the trial evidence, Jake moved for a directed verdict
of acquittal. Specifically, Jake alleged that the evidence was insufficient as to his
intent to steal the radiator and that the evidence instead suggested that the radiator
was abandoned. Jake argued that because the Commonwealth did not prove his
mens rea to commit a crime, he was entitled to a directed verdict.
The circuit court denied Jake’s motion. The jury then convicted him
on both charges. The circuit court sentenced Jake to a total term of ten years’
imprisonment. This appeal followed.
On appeal, Jake additionally contends that there was no reliable
testimony or evidence concerning valuation of the radiator. Consequently, Jake
argues that the Commonwealth failed to prove an element of the offense charged.
Jake concedes that this argument was not preserved in his motion for a directed
verdict.1 Therefore, we must review the resolution of this issue for palpable error.
A. FAILURE TO GRANT APPELLANT’S MOTION FOR DIRECTED
1. STANDARD OF REVIEW
One of the leading cases addressing the sufficiency of the evidence
and directed verdicts in criminal cases is Commonwealth v. Benham, 816 S.W.2d
186 (Ky. 1991). According to Benham, when a trial court considers a motion for
directed verdict, it must draw from the evidence all fair and reasonable inferences
Jake requests that this Court review this issue of valuation because his attorney stated in
closing argument that the jury had no way to value the radiator. Claims must be presented to the
trial court in order to be preserved for appellate review. See Hilsmeier v. Chapman, 192 S.W.3d
340, 345 (Ky. 2006). Jake’s failure to address valuation in his motion for a directed verdict
means that it may only be reviewed on appeal for palpable error under RCr 10.26.
in favor of the Commonwealth. Id. at 187. Furthermore, a trial court is prohibited
from granting a directed verdict if the evidence is sufficient to persuade a
reasonable juror to believe that the defendant is guilty beyond a reasonable doubt.
Id. In addition, the trial court must accept the Commonwealth's evidence as true;
however, it must reserve questions of credibility and weight for the jury. Id.
When we review the trial court's decision, we must determine, given the totality of
the evidence, whether it would be clearly unreasonable for a jury to find guilt. Id.
A defendant is entitled to a directed verdict of acquittal on appeal only if a jury
finding of guilt is “clearly unreasonable.” Id.
2. SUFFICIENCY OF THE EVIDENCE REGARDING DEFENDANT’S
INTENT TO COMMIT THEFT
In his first claim on appeal, Jake alleges that the trial court erred in not
granting him a directed verdict of acquittal. Jake contends that the evidence
presented by the Commonwealth failed to demonstrate his specific intent to
commit theft, as it was reasonable for him to believe that the radiator was
Theft by unlawful taking is codified in KRS 514.030 and reads, in
relevant part, as follows:
(1) ... a person is guilty of theft by unlawful taking when he
(a) Takes or exercises control over movable property of another with
intent to deprive him thereof...
(2) Theft by unlawful taking or disposition 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...
Thus, intent is an element of the crime as codified in KRS
514.030(1)(a). Nevertheless, upon review of the evidence supporting a judgment
entered upon a jury verdict, the role of this Court is limited to determining whether
the trial court erred in failing to grant a motion for a directed verdict. That is, this
Court may only overturn the trial court if, taking the Commonwealth’s evidence as
true, a finding of guilt is “clearly unreasonable.” Id.
Glasscock testified that, on the date in question, the radiator was
located on his private commercial property about ten feet from the door of his
shop. There were two dumpsters on the lot, but the radiator was not in or near the
dumpsters. Glasscock stated that he did have “No trespassing” signs up on his lot,
but it was difficult to keep them up and he was not sure if they were still up.2
Christina Embry testified that she and Jake knew they were on private
property when they came upon the radiator. She additionally stated that she knew
that the gravel driveway they used to reach the radiator was a private road. She
testified that the radiator was loaded into the trunk of their vehicle; they intended
to take the radiator; and they intended to sell it for scrap.
It is without question that a person charged with a crime may be
convicted solely upon circumstantial evidence. Newton v. Commonwealth, 2
S.W.2d 661 (Ky. 1928). When considering Jake’s motion for a directed verdict,
Christina Embry testified that she did not see any “No trespassing” signs, that there was no
fence to block access, and that there was junk scattered around the area.
the trial court was required to accept the Commonwealth’s evidence as true,
leaving issues of witness credibility for the jury.3
Glasscock’s testimony, taken as true, provided circumstantial
evidence that Jake intended to steal the radiator and that Jake had reason to know it
was not abandoned. The jury could have reasonably concluded that two people,
knowingly on private property, did not believe that items found on that property
were abandoned. The jury could have also concluded that scrap metals, admittedly
worth something to Jake and Glasscock both, could not be removed from private
property without the property owner’s permission. It was for the jury alone to
determine Christina Embry’s credibility.
Given the evidence presented, it was reasonable for the jury to have
found Jake guilty of theft by unlawful taking under KRS 514.030. The trial court’s
decision to deny Jake’s motion for a directed verdict is without error.
B. VALUATION EVIDENCE
1. STANDARD OF REVIEW
Appellant acknowledges that this claim was not properly preserved
for appeal. We must therefore determine whether this claim rises to the level of a
palpable error. Under RCr 10.26:
A palpable error which affects the substantial rights of a
party may be considered by the court on motion for a
new trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and
Glasscock and Christina Embry provided virtually identical testimony, the key distinction
being that Christina Embry denied that she and Jake possessed the intent to commit theft.
appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.
“Manifest injustice” means that “a substantial possibility exists that
the result of the trial would have been different.” Brock v. Commonwealth, 947
S.W.2d 24, 28 (Ky. 1997). “[I]f upon a consideration of the whole case [the] court
does not believe there is a substantial possibility that the result would have been
any different, the irregularity will be held nonprejudicial.” Schoenbachler v.
Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003) (internal quotation marks and
citation omitted). “An error must seriously affect the fairness, integrity, or public
reputation of a judicial proceeding in order to be considered palpable under RCr
10.26.” Page v. Commonwealth, 149 S.W.3d 416, 422 (Ky. 2004) (internal
quotation marks and citation omitted).
2. SUFFICIENCY OF THE EVIDENCE OF THE VALUE OF THE STOLEN
Jake next asserts that the Commonwealth failed to prove that the value
of the radiator was over $300.00. Thus, he contends that the trial court erred in
finding the evidence sufficient to constitute a Class D felony under KRS
514.030(2). He requests that this Court consider whether, in the absence of what
he deems sufficient proof as to valuation, the ten-year sentence he received based
on this felony conviction constitutes palpable error under RCr 10.26.4
Because the radiator was valued at over $300.00, Jake was charged with felony theft. This
allowed the Commonwealth to include a first-degree persistent, felony offender charge under
KRS 532.080. His sentence was thereby enhanced to ten years imprisonment. Had Jake been
convicted of only misdemeanor theft here, the persistent felony offender charge would have been
dropped and he would have received a shorter sentence. Jake argues that this difference in
sentencing affects his “substantial rights” and constitutes a “manifest injustice” under RCr 10.26.
Relying on Commonwealth v. Reed, 57 S.W.3d 269, 270 (Ky. 2001),
Jake argues that the Commonwealth was required to prove the market value of the
stolen item at the time and place of the theft. It has been well-established that “the
testimony of the owner of stolen property is competent evidence as to the value of
the property.” Id. at 270 (citing Poteet v. Commonwealth, 556 S.W.2d 893, 896
(Ky. 1977)). However, the owner’s testimony “must have sufficient detail for the
jury to make a value determination.” Reed at 270.
In the present case, Glasscock testified regarding the value of the
forklift radiator. Jake contends that Glasscock’s testimony did not provide the jury
with enough information to properly value the specific radiator in question.
Glasscock testified that the Allis Chalmer Company sells a new
forklift radiator for $2,600. He further testified that the forklift radiator in question
was in good, working order. He stated that it had been placed back into the
repaired forklift and was currently being used. Jake did not offer any evidence to
contradict Glasscock’s testimony.
Jake argues that Glasscock did not directly place a monetary value on
his specific radiator at the time of the theft. Jake notes that Glasscock did not state
the age of the radiator or speak much to its condition at the time Jake came upon it.
He reiterates that the radiator had been left outside for an unspecified period of
time. He also takes issue with the fact that the jury was not provided with any
pictures of the radiator which could have aided in its valuation.
Given the totality of the evidence, it was reasonable for the jury to
conclude that the radiator was worth over $300.00 at the time of the theft. The
owner’s testimony that the radiator, originally priced at $2,600, was reinstalled and
working was sufficient to support the jury’s finding of value. Thus, the
Commonwealth met its burden of proof regarding the value of the radiator. While
additional testimony may have been helpful, its absence does not imply the
“substantial possibility that the result would have been any different.”
Schoenbachler at 836. The trial court’s sentencing decision does not constitute
palpable error under RCr 10.26.
Finding no merit to Jake’s claims, the judgment of conviction entered
by the Grayson Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa Bridges Clare
Assistant Public Advocate
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General