CHILD UNDER EIGHTEEN APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

D.L., A CHILD UNDER EIGHTEEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2011–CA–000309–DG

Decided: February 17, 2012

BEFORE:  CAPERTON, CLAYTON, AND VANMETER, JUDGES. BRIEFS FOR APPELLANT:  Robert K. Strong Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Jennifer O. True Assistant Attorney General Lexington, Kentucky

NOT TO BE PUBLISHED

OPINIONREVERSING AND REMANDING

D.L., a juvenile, appeals a Fayette Circuit Court order affirming a Fayette District Court order finding D.L. delinquent for the offense of receiving stolen property, more than $500, less than $10,000.   The adjudication stemmed from D.L.'s possession of a severely damaged stolen moped.   The court ordered D.L. to pay $1391 in restitution to the victim of the theft.

On appeal, the parties present two issues, namely:  (1) whether the Commonwealth introduced sufficient evidence to sustain their burden of proof regarding receiving stolen property, more than $500;  and (2) whether the order of restitution was in error.   Having determined that the Commonwealth failed to sustain their burden of proof regarding receiving stolen property, more than $500, we necessarily reverse and remand this matter in its entirety for further proceedings not inconsistent with this opinion.

The facts of this appeal were testified to at the July 2, 2010, adjudication hearing before the district court.   At the hearing, the Commonwealth called two Lexington police officers, Officers Garth and Carter, and the victim of the theft, Patricia Schmittfull.   Officer Garth testified that he responded to a call regarding the theft of a moped on April 23, 2010.   During his investigation, Officer Garth spoke with Schmittfull, who reported the theft of her recently purchased moped from her apartment complex.   Schmittfull testified that she had purchased the moped for $2000.00 in the autumn of 2009.   She testified that upon the return of the moped, the frame was “messed up” and the blinkers, steering and the starting mechanism were severely damaged.

Officer Carter testified that he detained D.L. on an unrelated matter on April 29, 2010.   Officer Carter then noticed that the moped that D.L. was driving was damaged and had been painted.   D.L. explained that he had bought the moped from someone for one hundred and fifty dollars ($150).   Officer Carter then ran the moped's identification number and discovered that it had been reported stolen.   In addition, D.L. did not have an operator's license.

D.L. then testified in his own defense.   D.L. informed the court that he had purchased the moped from a person named “Wayne” for $150.   At the time of the purchase, the moped was broken down and appeared to have been wrecked.   D.L. had to push it home after buying it from Wayne.   D.L. had witnessed Wayne riding it before and, given the damaged state it was in, thought the price was reasonable;  thus D.L. claimed to have no reason to suspect the moped was stolen.   D.L. had experience working on mopeds because he had worked in a moped store in town for eight months and he believed he could repair the moped.   After obtaining the moped, D.L. replaced the spark plugs and the battery.   After hearing the aforementioned testimony, the court overruled D.L's motions for a directed verdict and found D.L. delinquent as charged.   Subsequently, a disposition hearing was held on July 23, 2010.

At the disposition hearing the district court accepted the recommendations of the Department of Juvenile Justice to place D.L. on phase II probation, and to impose a 30–day detention.   The detention was suspended pending no further court involvement.   The district court then addressed the issue of restitution and acknowledged that D.L. was entitled to a restitution evidentiary hearing to establish the amount of restitution.   However, based on the receipts shown to the court but not made a part of the record, the court determined that it could not foresee any reason not to award $1,391.00 in restitution.   The court stayed the restitution proceedings pending appeal of the underlying charge.   On appeal, the circuit court found no error in either the underlying charge or the award of restitution.   We have granted discretionary review of this matter.

On appeal, D.L. presents three arguments, namely:  (1) the Commonwealth failed to provide sufficient proof beyond a reasonable doubt that D.L. was delinquent of the offense of receiving stolen property over $500;  (2) the district court's restitution order violated the Fourteenth Amendment of the United States Constitution and Section 2 of the Kentucky Constitution because the evidence was insufficient to establish the basis of the restitution amount;  and (3) the district court's restitution order violated the Fourteenth Amendment of the United States Constitution and Section 2 of the Kentucky Constitution because it was a violation of the Kentucky Juvenile Code's mandate for restitution to be in the best interest of the juvenile and that imposing joint and several liability was a violation of due process and equal protection.

In response the Commonwealth argues:  (1) the trial court and the appellate court correctly held that sufficient evidence existed to find D.L. guilty beyond a reasonable doubt;  (2) the appellate court correctly held that the trial court did not err by awarding restitution;  and (3) the trial court did not violate D.L.'s constitutional rights by ordering restitution.   We believe that these arguments may be condensed into two issues, namely:  (1) whether the Commonwealth introduced sufficient evidence to sustain their burden of proof regarding receiving stolen property, more than $500;  and (2) whether the order of restitution was in error.   Therefore, we now turn to the first issue raised on appeal:  whether the Commonwealth introduced sufficient evidence to sustain their burden of proof regarding receiving stolen property, more than $500.

We begin our discussion of this issue with the applicable standard of review in juvenile proceedings.   The adjudication hearing is conducted by the court without a jury.   Kentucky Revised Statutes (KRS) 610.070(1).   Accordingly, under Kentucky Rules of Civil Procedure (CR) 52.01, “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”   A trial court's factual finding is not clearly erroneous if supported by substantial evidence.  Owens–Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998).

As noted in W.D.B. v. Commonwealth, 246 S.W.3d 448, 453 (Ky.2007):

When a juvenile challenges the sufficiency of the evidence, because the Commonwealth carries the same burden of proof as it does in an adult criminal case to show that a juvenile committed an offense, we borrow from the criminal law and apply the directed verdict standard of review.   Thus, in the case of a juvenile adjudication, a reviewing court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth and determine if, under the evidence as a whole, it would be clearly unreasonable for the trial court to find guilt, only then the juvenile is entitled to a directed verdict of acquittal.

Id. (internal citations omitted).

KRS 514.110 states in part:

(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) 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:

(a) The value of the property is five hundred dollars ($500) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony.

D.L. argues that the Commonwealth failed to introduce sufficient evidence to sustain its burden of proof regarding receiving stolen property of a value more than $500.   Generally, the Commonwealth bears the burden of establishing each and every element of an offense beyond a reasonable doubt.  Brown v. Commonwealth, 890 S.W.2d 286, 288 (Ky.1994);  Commonwealth v. Hamilton, 905 S.W.2d 83, 84 (Ky.App.1995);  KRS 500.070(1).   More specifically, in a prosecution for receiving stolen property, the Commonwealth has the burden of proving the value of the property received.  Macklin v. Commonwealth, 687 S.W.2d 540, 542 (Ky.App.1984);  Lee v. Commonwealth, 547 S.W.2d 792, 795 (Ky.App.1977).

The property stolen, or a photograph depicting such property, need not be produced at trial since verbal testimony describing the stolen property is sufficient to support a conviction.  Irvin v. Commonwealth, 446 S.W.2d 570, 572 (Ky.1969).   In fact, the owner of the stolen property may offer an opinion on the value of the property in order to establish the dollar amount at issue.  Poteet v. Commonwealth, 556 S.W.2d 893, 896 (Ky.1977).   The Commonwealth, in sustaining its burden of proof for a conviction under KRS 514.110, must establish the value of the property when the defendant violates the statute, i.e., receives it.   Such was the holding in Tussey, infra, wherein the court stated:

We are persuaded by movant's contention that the value of the stolen property on the date the offender receives it is the proper date for determining the severity of the violation.   We conclude that this position conforms not only to existing law in Kentucky (Clatos v. Commonwealth, 298 Ky. 851, 184 S.W.2d 125 (1944)) but also to a logical interpretation of the statute.   The act of receiving stolen property is a criminal offense independent of the criminal act of theft.   The value of the property stolen determines the culpability of the thief.   If a person steals property worth less than $100 he commits a misdemeanor;  more than $100, a felony.   See, e. g., KRS 514.030.   Applying this rationale to the separate offense of receiving stolen property results in a similar conclusion:  a person who receives stolen property worth less than $100 has committed a misdemeanor;  more than $100, a felony.

It is possible to envision various circumstances which result in the substantial depreciation of the value of an item of stolen property.   To hold an individual responsible for an act unrelated to his or her own criminal liability would contradict all theories of fairness in modern justice.

Tussey v. Commonwealth, 589 S.W.2d 215, 215–16 (Ky.1979)(footnotes omitted) (emphasis added).

This is unlike the situation presented in Perkins v. Commonwealth, 409 S.W.2d 294, 296 (Ky.1966), wherein the court stated that “The Commonwealth had the duty to establish the market value at the time and place of the theft․”  Perkins involved the crime of grand larceny—not the crime of receiving stolen property as was sub judice.   As stated in Tussey, supra, “The act of receiving stolen property is a criminal offense independent of the criminal act of theft.”  Id. at 215.   Thus, the relevant inquiry in Perkins, a theft case, was the value of the property at the time of theft, unlike the matter sub judice, where the relevant inquiry was the value of property at the time D.L. received the stolen property.

Additionally, in Commonwealth v. Reed, 57 S.W.3d 269, 271 (Ky.2001), the Kentucky Supreme Court affirmed the holding of this Court in reversing Reed's conviction for receiving stolen property due to insufficient evidence.   The Reed court noted that the items found in the defendant's possession were not proven to be valued at more than $300;  despite evidence of the value of the items at the time they were stolen, the absence of evidence on the value of the items received by the defendant mandated reversal.   Thus, the dearth of evidence regarding the value of the moped at the time that D.L. received or retained it requires reversal of the conviction.

Last, we note that in such a case, the Commonwealth must necessarily undertake an assessment of depreciation and of the amount of damage sustained by the property and the impact thereon of its value.   Such a substantial change in the value of property was contemplated in Tussey when the court surmised, “It is possible to envision various circumstances which result in the substantial depreciation of the value of an item of stolen property.   To hold an individual responsible for an act unrelated to his or her own criminal liability would contradict all theories of fairness in modern justice.”  Tussey at 216.

Thus, in light of our controlling precedent, Tussey, in the matter sub judice, the Commonwealth was required to establish the value of the moped at the time D.L. received or retained it.  KRS 514.110.   While the trial court, as fact-finder, was presented evidence of the purchase price of the moped and the extent of the damage to the moped, the Commonwealth failed to introduce evidence regarding the value of the moped at the time D.L. received, retained, or disposed of it. Double Without such evidence, the Commonwealth could not sustain its burden of proof to establish a felony and the fact-finder was without sufficient evidence to make a value determination.   Accordingly, the trial court erred in not granting D.L.'s directed verdict motion based on lack of the Commonwealth to establish the value of the stolen property to be $500.00 or more.

This brings us to the question of what action should be taken when property is adjudged stolen but the established value of the property is less than that required to be a felony.   We believe the proper action to be set forth in

Embry v. Commonwealth, 492 S.W.2d 929 (Ky.1973), wherein the Court stated “it appears that the alleged failure of the prosecution to adequately establish the value of the stolen property found in defendant's home did not exonerate the defendant under KRS 433.290, but affected the extent of punishment that could be inflicted in the event of a finding of guilt.”  Double

The jurisprudence of Embry was followed by Reed wherein that Court reversed the felony conviction and remanded for sentencing on a misdemeanor.   We believe this to be the proper course of action and well reasoned.   The stolen property has already been adjudged received by D.L.;   this is the crime set forth in KRS 514.110(1).   The value of the property received determines the range of penalty.  KRS 514.110(3).   The failure to establish the value of the property leaves little to be done but assign it a minimum value for purposes of sentencing.

Accordingly, we reverse and remand this matter for entry of a judgment on the misdemeanor conviction of receiving stolen property and sentencing thereon and other appropriate proceedings.   We decline to review D.L.'s alleged errors concerning restitution given our reversal.

CLAYTON, JUDGE, CONCURS.

VANMETER, JUDGE, DISSENTS WITHOUT OPINION.

CAPERTON, JUDGE: