RONALD CRAWLEY V COMMONWEALTH OF KENTUCKY
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IMPORTANT NOTICE
NOT TO BE PUBLISHED_ I~PINION
THIS OPINIONIS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
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SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY CO URT OF THIS STATE.
RENDERED : SEPTEMBER 18, 2003
NOT TO BE PUBLISHED
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2001-SC-0462-MR
RONALD CRAWLEY
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APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LAURENCE VANMETER, JUDGE
2000-CR-0214
COMMONWEALTH OF KENTUCKY
APPELLANT
MEMORANDUM OPINION OF THE COURT
AFFIRMING
1. INTRODUCTION
A Fayette Circuit Court jury found Appellant guilty of one (1) count of Speeding
and two (2) counts of Felony Theft by Deception and found him to be a First-Degree
Persistent Felony Offender ("PFO") . The jury fixed Appellant's punishment at a fine for
the Speeding offense and PFO-enhanced sentences of eighteen (18) years for each
count of Theft by Deception. At final sentencing, the trial court sentenced Appellant to
three (3) days in lieu of the Speeding fine and reduced Appellant's sentence for each
Theft by Deception conviction to ten (10) years, but ordered the felony sentences to run
consecutively for a total sentence of twenty (20) years. Appellant thus appeals to this
Court as a matter of right' and argues that he was entitled to directed verdicts of
acquittal on the Theft by Deception charges because the Commonwealth failed to
' KY. CONST. § 110(2)(b) .
introduce sufficient evidence of his criminal intent . After a review of the record, we
affirm the judgment of the Fayette Circuit Court .
II . BACKGROUND
The evidence for the Commonwealth was fairly straightforward . On August
23,1999, Appellant wrote two (2) checks . The first check, check # 108 in the amount of
$876 .73, was presented to Meijer at 3:00 a.m . for merchandise that Appellant
purchased at that location . Similarly, the second check, check # 109 in the amount of
$637.38, was given to Intimate Apparel in exchange for merchandise that Appellant
purchased . Each check was subsequently dishonored by its issuing bank and returned
to the respective merchant with the notation "INSUFFICIENT FUNDS" stamped on its
face . On three (3) occasions, Meijer mailed letters to Appellant at the address shown
on the check in attempts to notify Appellant that his check had been returned for
insufficient funds. Intimate Apparel did not attempt to notify Appellant that the check
had been dishonored by the bank, but it submitted the check for collection twice and
then turned the unpaid check over to the Fayette County Attorney .
On September 9, 1999 (check # 109) and October 5, 1999 (check # 108), the
Fayette County Attorney's office notified Appellant by letters, which, like the letters that
had been sent by Meijer's, were sent to the address on the check itself, that he had ten
(10) days to make payment on the checks or face criminal prosecution . Appellant did
not make payment for the checks . Accordingly, the Fayette County Attorney's office
sought process and on November 13, 1999 Appellant was arrested on a Theft by
Deception warrant that arose from the Meijer check, and on December 1, 1999 was
served with a criminal summons for Theft by Deception as a result of the Intimate
Apparel check. A Fayette County Grand Jury returned an indictment charging him with
felony Theft by Deception for both checks. At the time of trial, Appellant still had not
paid the checks .
In his defense, Appellant testified that while boating on Lake Cumberland, he
discovered that he had lost his wallet and that he immediately called the credit card
company to request a replacement card. Since he did not have a checking account, he
asked if he may continue to use the "courtesy checks ,3 issued with his credit card
account. He testified that the credit card company representative assured him that he
could do so .
After learning of the problems with the checks from the Fayette County
Attorney's office, Appellant testified that he contacted the bank and got the "run
around ." He explained that he has never paid the outstanding amounts to the named
retailers because he believed that his responsibility for payment runs only to his bank,
not the merchants .
2 Appellant had also been indicted for Second-Degree Criminal Possession of a
Forged Instrument, but the jury acquitted him of that count of the indictment.
3
A "courtesy check," which is also known as a "credit card" or "convenient"
check, serves the same function as a traditional check. A courtesy check allows the
maker to pay bills by mail or make a purchase from merchants that do not accept credit
cards . A traditional check is drawn on the maker's bank account ; whereas, a courtesy
check is charged against the maker's credit card and thereby allows the maker to
access his or her credit line. If the maker has exceeded his or her credit card limit,
however, the check will not be honored by the bank; just like a traditional check is
dishonored when the maker person does not have sufficient funds in the bank. On the
face of the checks used by Appellant, it was printed, "PAYABLE THROUGH CROSS
COUNTRY BANK WILMINGTON, DE"; otherwise, their appearance are the same as
traditional checks . The fact that Appellant obtained the merchandise with courtesy
checks, rather than traditional checks, is not a relevant consideration in this case .
III. ANALYSIS
A. PRESERVATION
Appellant's sole argument is that the evidence was insufficient to support his
Theft by Deception convictions . He admits, however, that he did not properly preserve
this issue for our review because his trial counsel failed to renew his motion for directed
verdict at the close of all of the evidence .4 Nonetheless, Appellant asks this Court to
review the issue as palpable error under RCr 10 .26.5
We
will do so, of course,
because a conviction based on insufficient evidence would deprive Appellant of
substantial due process rights .s
4 Failure to renew a motion for directed verdict at the close of all evidence is fatal
to preserving an insufficiency of the evidence argument on appeal. Schoenbachler v.
Commonwealth , Ky., 95 S.W .3d 830, 836 (2003) (citing Baker v. Commonwealth , Ky.,
973 S .W .2d 54, 55 (1998) (citation omitted) .
5 RCr 10 .26 provides :
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 appropriate
relief may be granted upon a determination that manifest
injustice has resulted from error.
6 Schoenbachler v. Commonwealth , supra note 4 at 836-837 ("We recognize not
only that 'the burden is on the government in a criminal case to prove every element of
the charged offense beyond a reasonable doubt and that the failure to do so is an error
of Constitutional magnitude,' but also that the nature of the error alleged here is such
that, if the trial court did, in fact, err by failing to direct a verdict of acquittal, that failure
would undoubt[edly] have affected Appellant's substantial rights . And, we likewise
observe that the trial result necessarily would have been different if the trial court had
directed a verdict in Appellant's favor. Accordingly, we examine the merits of Appellant's
allegation.") (footnotes omitted) ; Perkins v. Commonwealth , Ky.App., 694 S .W .2d 721,
722 (1985) ("Appellee argues that these [insufficiency of the evidence] errors are not
preserved for our review since appellant made no motion for a directed verdict at any
point during the trial. Ordinarily, we would agree with appellee, but a conviction in
violation of due process constitutes '[a] palpable error which affects the substantial
rights of a party' which we may consider and relieve though it was insufficiently raised
or preserved for our review.").
B. SUFFICIENCY OF THE EVIDENCE
Appellant alleges that there was insufficient evidence of intent presented at trial
for a reasonable jury to find him guilty of Theft by Deception . We disagree .
This Court reviews insufficiency-of the-evidence allegations under the standard
articulated in Commonwealth v. Benham :7
On 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 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.
On appellate review, 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, only then the defendant
is entitled to a directed verdict of acquittal .s
Appellant contends that, in order to prove his guilt of Theft by Deception, the
Commonwealth was required to show that he had the intent to deprive the merchants of
their property without paying for it. We agree . KRS 514.040 provides in relevant part:
A person is guilty of theft by deception when the
person obtains property or services of another by
deception with intent to deprive the person thereof . A
person deceives when the person intentionally :
(e)
Issues or passes a check or similar sight order
for the payment of money, knowing that it will
not be honored by the drawee.
7 Ky., 816 S .W.2d 186 (1991).
' Id . at 187.
Appellant argues that the Commonwealth failed to prove (1) that Appellant knew
that the bank would not honor the checks and (2) that he intended to deprive the
merchants of their property . We disagree .
First, we would note that KRS 514 .040 creates a presumption of such knowledge
on the part of a maker when a bank refuses to pay a check :
(4)
For purposes of subsection (1) of this section, a
maker of a check or similar sight order for the
payment of money is presumed to know that the
check or order, other than a postdated check or
order, would not be paid, if:
(b)
Payment was refused by the drawee for lack of
funds, upon presentation within thirty (30) days
after issue, and the maker failed to make good
within ten (10) days after receiving notice of
that refusal . A maker makes good on a check
or similar sight order for the payment of money
by paying to the holder the face amount of the
instrument, together with any fee imposed
pursuant to subsection (4)(c) of this section[.J
In the present case, payment was refused by the banks for "INSUFFICIENT
FUNDS"; Appellant acknowledged during his testimony that he received the ten-day
letters from the county attorney, and he failed to make good within ten (10) days after
receipt of the notices. Therefore, as a result of KRS 514 .040(4)(b)'s rebuttable
presumption, 9 Appellant was presumed to have known that the checks would not be
paid upon presentation by the merchants for payment .
And, second, we would note that "[t]his imputed knowledge in turn meets the
requirements of subsection (1) concerning `intent to deprive ."''° Accordingly, we hold
9 Patterson v. Commonwealth , Ky.App ., 556 S.W.2d 909, 911 (1977) (describing
the presumption under KRS 514.040(4) as a "rebuttable presumption .").
10
Id .
that the Commonwealth's proof of the facts that implicate the presumption was
sufficient to establish a prima facie case of Appellant's intent to deprive the merchants
of their property and thereby avoid direct verdicts of acquittal ."
Appellant postulates that the trial court's failure to inform the jury of the
presumption presents a problem. We would simply point out that the law is well-settled
in Kentucky that presumptions shall not be included in instructions . 12
Finally, relying on Martin v. Commonwealth, 13 Appellant argues that the
Commonwealth "proved nothing more that an inability to pay, which . . . is not sufficient
to establish theft by deception ." We disagree both with Appellant's summary of the
evidence and with his reading of Martin . The check involved in that case did not come
within the purview of the Theft by Deception statute because it had been issued for
11
Commonwealth v. Collins , Ky., 821 S .W .2d 488, 490 (1991) (Although
referring to another presumption, the Court stated, "We agree with the Court of Appeals
that the legal effect of the statutory presumption referred to above is to provide a guide
for the trial court in evaluating a motion for directed verdict. When the presumption
applies, there is a prima facie case of an intent to sell, thus constituting a question of
fact for the jury based upon all the evidence ."); Patterson v. Commonwealth , Ky .App .,
556 S .W.2d 909, 911 (1977) ("[M]ost state statutes on worthless checks require the
intent to defraud as an essential element. These statutes commonly contain the `prima
facie' presumption or inference provision of intent to defraud. Of course these are
rebuttable presumptions and conviction will not be had where the accused can
satisfactorily explain otherwise ."); 1 COOPER, KENTUCKY INSTRUCTIONS TO JURIES
(CRIMINAL), Chapter 1, Part 1, § 1 .07 and Chapter 6, Part 3, § 6 .25 commentary at 324
(4th ed . Anderson 1993) .
12 Commonwealth v. Miller, Ky., 575 S .W.2d 467, 468 (1978) ("It is the traditional
Kentucky view that [presumptions] should not be included in the instructions to the jury
because to do so invades their province to weigh the evidence and draw their own
conclusions .") ; R. LAWSON, THE KENTUCKY EVIDENCE LAW HANDBOOK 10 .20 IV, Jury
Instructions, at 578-79 (3d ed . Michie 1993) ; 1 COOPER, KENTUCKY INSTRUCTIONS TO
JURIES (CRIMINAL), Chapter 1, Part 1, § 1 .07 (4th ed . Anderson 1993) .
13
Ky .App., 821 S .W .2d 95 (1991) .
7
services already rendered . 14 Consequently, the rebuttable presumption that we find
dispositive to the allegation in the case at bar was not germane to the analysis in Martin
because there was no "parting with property or services based upon the intent to
deprive the owner thereof." 15 Here, the merchants parted with property simultaneously
with the giving of the checks, and the trial court properly denied Appellant's motions for
directed verdict .
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Fayette Circuit Court .
Graves, Johnstone, Keller, Stumbo and Wintersheimer, JJ ., concur. Lambert,
C.J. and Cooper, J ., concur in result only.
_Id . at 97 ("In view of the foregoing authorities, we are constrained to believe
that the issuance of the check in question by appellant in payment for the services
already rendered by Meredith, as was customary, did not come within purview of the
statute .") .
14
_Id . ("The obvious interpretation of the foregoing statute is that there must be a
parting with property or services based upon the deceptive intent to deprive the owner
thereof.").
15
COUNSEL FOR APPELLANT :
John Palombi
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
A. B . Chandler, III
Attorney General
Anitria M . Franklin
Assisant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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