Com. v. Hamilton, 94-CA-1307-MR
| Decision Date | 25 August 1995 |
| Docket Number | No. 94-CA-1307-MR,94-CA-1307-MR |
| Citation | 905 S.W.2d 83 |
| Parties | COMMONWEALTH of Kentucky, Appellant v. Frank HAMILTON, Appellee. |
| Court | Kentucky Court of Appeals |
Chris Gorman, Attorney General, Michael Harned, Assistant Attorney General, Frankfort, and Michael A. Stidham, Special Assistant Attorney General, Jackson, for appellant.
Charles K. Belhasen, Paintsville and Phaedra Spradlin, Lexington, for appellee.
Before HUDDLESTON, JOHNSON and WILHOIT, JJ.
OPINION REVERSING AND REMANDING
This is an appeal from the order of the Johnson Circuit Court dismissing the nineteen-count indictment charging the appellee with the crime of theft by unlawful taking in violation of KRS 514.030.
On May 6, 1994, the Johnson County Grand Jury issued an indictment charging the appellee with nineteen counts of theft under KRS 514.030. All nineteen counts charged the appellee with felony theft, though four allegedly occurred after the 1992 amendment of the statute. The indictment alleges that the appellee unlawfully issued checks transferring money belonging to the Johnson County Board of Education. The money was given to teachers in the county's school system to reimburse them for tuition and fees paid by them while attending classes at Morehead State University.
Each count reads substantially the same as the following:
The Grand Jury charges that on the dates specified below in Johnson County, Kentucky, the above-named defendant:
COUNT I
Unlawfully committed the offense of Theft by Unlawful Taking of property valued at over $100 when on September 26, 1990 he took and exercised control over monies belonging to the Johnson County Board of Education by issuing a check in the amount of $707.50 to Maurice Hall to reimburse him for college expenses, and with the intent to deprive the Johnson County Board of Education of the same.
The only differences in each count are the amount of the check, the payee, the type of expenses, and the date.
The appellee filed a motion to dismiss on May 13, 1994, contending that the indictment failed to contain a chargeable offense. He argued that he did not have the authority to issue the checks in question; therefore, he could never exercise control over the Johnson County Board of Education's money as alleged in the indictment. See KRS 160.560(3) and (4). Furthermore, the appellee produced a variety of documents that proved the impossibility of the charge. These included: Johnson County Board of Education meeting minutes purporting to authorize the various expenditures; affidavits from two former Board treasurers swearing that they never issued checks unless the funds were authorized; and a letter from the Board asking that the charges be dropped. None of these documents had been presented to the grand jury for its consideration.
On May 20, 1994, a hearing was held on the motion to dismiss. The appellee reiterated his argument that it was legally and theoretically impossible for him to be guilty of this particular crime. The appellant espoused the position that a motion to dismiss was premature, and the proper procedure would be to move for a directed verdict at the close of the Commonwealth's case. An order dismissing the indictment was entered on May 24, 1994. The trial court acknowledged that the critical issue concerned the appellee's control over the funds. In dismissing the indictment, the court concluded as follows:
The weight of the evidence reveals that Defendant did not exercise control over the funds in question, and therefore the indictments against him fail to charge an offense.
As authority, the trial court cited to RCr 8.18 and Stark v. Commonwealth, Ky., 828 S.W.2d 603 (1991). This appeal followed.
The appellant maintains that the issue of control is a matter of proof to be presented at trial, citing RCr 5.10, which provides that
no indictment shall be quashed or judgment of conviction reversed on the ground that there was not enough evidence before the grand jury to support the indictment.
The appellant claims that the matter should have gone to trial, at which the appellee could move for a directed verdict. In response, the appellee contends that KRS 160.560, which gives sole...
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