Allen v. Commonwealth, 2010–SC–000353–DG.

• Decision Date: 21 March 2013
• Docket Number: No. 2010–SC–000353–DG.,2010–SC–000353–DG.
• Citation: 395 S.W.3d 451
• Parties: Gabriella Simone ALLEN, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: Supreme Court of Kentucky

395 S.W.3d 451

Gabriella Simone ALLEN, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000353–DG.

Supreme Court of Kentucky.

March 21, 2013.

Daniel Jay Canon, Clay, Frederick, Adams, PLC, Louisville, KY, for Appellant.

Jack Conway, Attorney General, Courtney J. Hightower, Assistant Attorney General, Office of the Attorney General, Frankfort, KY, for Appellee.

Opinion of the Court by Justice NOBLE.

The Appellant, Gabriella S. Allen, was convicted of perjury for lying in a criminal complaint and theft by deception for obtaining the discharge of a vehicle loan by lying to the finance company about whether her name had been forged on the loan documents. On appeal, she claims entitlementto a directed verdict on the ground that there was no proof that she obtained any property by the discharge of the loan. She also claims that the trial court erred in excluding evidence about the complaining witness's prior convictions for possession of forged instruments and giving police a false name, which prevented her from establishing her defense. This Court concludes that the evidence was sufficient to avoid a directed verdict but that Allen was entitled to ask about the witness's convictions on cross-examination, and reverses.

I. Background

Gabriella Allen was a Louisville Metro Police Officer who had a short romantic relationship with Curtis Wayne Weaver in late 2004 and early 2005. During that relationship, Weaver obtained a 2002 Ford F–150 pick-up truck from Oxmoor Toyota in Louisville, Kentucky. The truck was financed through a separate company, Toyota Motor Credit Corporation.

Weaver needed a co-signer on the loan to complete the purchase. Allen's signature was included on the loan documents as the co-signer, though she disputes that she actually signed the documents and claims her signature was forged, which lies at the core of the criminal charges against her in this case. The transaction was completed on January 25, 2005. Weaver had the truck for two years, and made the payments until he was injured at work. As a result, the truck was repossessed.

In December 2006, Allen went to the Jefferson County Attorney's office and swore under oath on a notarized criminal complaint that Weaver had forged her signature on the loan documents. About a week later, Allen sent various documents to Toyota Motor Credit, which held the loan on the truck, alleging that Weaver had forged her signature on the loan documents, which included some of the financing documents, an affidavit of identity theft, and proof of her residence and identification. Toyota's fraud department investigated the matter and concluded that Allen had been the victim of fraud. As a result, Toyota forgave the debt against her and closed her account. The discharged debt totaled $7,487.84.¹

In February 2007, Weaver was arrested on the complaint. The charges against him, however, were eventually dismissed. He claimed this was because he convinced the prosecutor that Allen had actually signed the documents.

In March 2008, Allen and Weaver had a verbal altercation outside Club Cedar, a nightclub in Louisville. Weaver claimed that Allen threatened to kill him or have him killed.

As a result, Weaver filed a complaint with the Louisville Metro Police Department. The matter was investigated by the Public Integrity Unit. As part of the investigation, the unit interviewed Allen, who claimed that Weaver had forged her name on aforementioned loan documents. Her story, however, included inconsistencies about the nature of her relationship with Weaver, and whether she had ever gone to Oxmoor Toyota with him and whether she had signed anything on his behalf.² As a result of that investigation, Allen was charged with first-degree perjury for swearing a false complaint against Weaver; theft by deception over $300 ³ for givingfalse information to Oxmoor Toyota and thereby depriving Oxmoor Toyota of property; ⁴ and terroristic threatening stemming from the incident with Weaver outside the nightclub.

At trial, Allen was acquitted of terroristic threatening but found guilty of the other two charges. She was sentenced to three and a half years in prison, which was probated for five years.

On appeal, Allen challenged her conviction on three grounds. First, she claimed the trial court erred in not allowing evidence of the specific nature of Weaver's prior convictions, which consisted of multiple instances of felony criminal possession of a forged instrument and misdemeanor giving a false name to a peace officer. Second, she claimed that the trial court should have granted a directed verdict on the theft charge because the Commonwealth presented insufficient proof that she obtained any property. Third, she claimed the trial court erred in not granting her motion for a new trial or a verdict of acquittal after trial. The Court of Appeals was not convinced by these claims and affirmed.

This Court granted discretionary review to decide whether Allen was properly convicted of theft by deception and whether she was entitled to introduce specific evidence of Weaver's convictions.

II. Analysis

Allen has pursued the same three issues on discretionary review to this Court. Because the directed verdict issue, if decided in Allen's favor, would render the other issues moot, it must be addressed first.

A. Allen was not entitled to a directed verdict on the theft charge.

On appeal, a claim of entitlement to a directed verdict is evaluated under the long-standing standard of Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991). Under that case, the evidence must be viewed in the light most favorable to the Commonwealth, with the Commonwealth's proof assumed true and questions of credibility and weight left to the jury. Id. at 187. When the case is on appeal, the defendant must show that “under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt.” Id. “[O]nly then the defendant is entitled to a directed verdict of acquittal.” Id.

Allen claims to have satisfied this standard with respect to her theft conviction.⁵ Specifically, she claims that she was entitled to a directed verdict because she obtained no property or services, an essential element of theft by deception. As a secondary argument, assuming the Commonwealth did prove that she obtained property or services, she claims that Toyota never relied on her allegedly false representation, which our cases require. We address each claim in turn.

1. The Commonwealth sufficiently proved that Allen obtained “property,” and thus the trial court properly denied the directed-verdict motion.

Allen argues that she obtained no property or services because no one ever tried to collect the debt from her; there was no evidence that the debt against her ever existed; and there was no “pecuniary significance” to the discharge of the debt because it was still collectable against Weaver, as the primary obligor, and against Allen, assuming the debt against her could be reestablished. She notes that she never “received or possessed the truck,” that she never “obtained any property, money or services as a result of her alleged deception,” and that she “received no such benefits, and never so much as drove Curtis Weaver's truck.”

Before turning to what the proof at trial showed, it is necessary to first establish exactly what the law requires for a conviction of theft by deception. Theft by deception is defined in KRS 514.040. The essential elements of the offense require that “the person obtain[ ] property or services of another by deception with intent to deprive the person thereof.” KRS 514.040(1). Because Allen has not challenged whether she deceived Toyota, ⁶ the central question in this case is whether she obtained “property.” ⁷

The arguments in the brief and at oral argument focused on the common understanding of property, i.e., that the word includes only things like money or physical property. But “property” is a statutorily defined term. Under KRS 514.010(6), “ ‘Property’ means anything of value, including real estate, tangible and intangible personal property, contract rights, documents, choses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink.” This definition has not been cited in any of the briefs submitted to this court, nor was it mentioned at oral argument.

Yet it is illuminating, since it shows that the legislature intended the theft statute to cover a broader range of “property” than the ordinary meaning by itself might suggest. Indeed, the commentary notes that “[t]he definition of ‘property’ is indicative of the all-inclusive scope of theft offenses under the Code.” KRS 514.010 Kentucky Crime Comm'n/LRC Cmt. (1974) (emphasis added).⁸ Thus, it is clear that the definition of property in the statute is very expansive, covering anything of value, and includes intangible property and contract rights. Thus, the fact that Allen did not receive tangible property, like the truck itself or money, does not mean she did not commit theft by deception.

Assuming the Commonwealth proved that Allen actually signed the loan documents and thus entered into an agreement with Toyota, of which there is ample proof, ⁹ and that Allen later deceived Toyota into discharging the debt against her, it seems clear under this expansive understanding of “property” that Allen indeed obtained property of some sort from Toyota. Before the deception and resulting discharge of debt, Toyota had certain contractual rights enforceable against Allen. Chief among these was the right to have the amount of the debt and any accrued interest paid to it by Allen. Contractual rights are things of value—they are property rights—and, indeed, are specifically named in the statute. Because of Allen's deception, Toyota gave up that contractual right. So the answer to the question of what was stolen is that Allen stole Toyota's contractual right to collect on the...