Commonwealth v. Burnette

¶1dissenting.

¶2Respectfully, I dissent.

¶3In order to establish a theft by deception, it must be shown that a defendant obtained something to which he was not otherwise entitled. Palmer v. Commonwealth, Ky., 479 S.W.2d 613 (1972). The offense is not established if the “victim” of the offense received what was bargained for or if predicated upon matters which have no pecuniary significance. Sanson v. Commonwealth, 313 Ky. 631, 233 S.W.2d 258 (1950); Rowland v. Commonwealth, Ky., 355 S.W.2d 292 (1962); and Davis v. Commonwealth, Ky.App., 564 S.W.2d 33 (1978). Nor is the offense established without proof of reliance by the “victim” on the alleged deception or misrepresentation. Brown v. Commonwealth, Ky., 656 S.W.2d 727 (1983). In short, where an alleged deception did not cause the theft or was not the means of the theft, there can be no theft by deception.

¶4Clearly, as pointed out by the majority opinion, sufficient proof was adduced at trial for a reasonable juror to believe beyond a reasonable doubt that Burnette, Wolf, and Kelly acted to deceive in submitting the invoices containing the false dates. However, there must also be sufficient proof of the same nature that the Commonwealth relied upon the deception in rendering payment. Brown v. Commonwealth, supra. In this regard, there is an absence of proof that the flights were not for the purpose of promoting *871the agricultural interest of Kentucky or that the Commonwealth would not have paid for the flights had the actual dates .been revealed. It was the Commonwealth’s burden to adduce this proof, and it failed to do so.

¶5At the time of the flights, Burnette was Commissioner-Elect of the Department of Agriculture. The flights involved were for the stated purpose of obtaining information and contacts for the potential establishment of a hay program and international marketing office in Kentucky. Reimbursement for travel expenses by the state is not limited to state employees, but rather includes those “persons in the official service of the Commonwealth.” 200 KAR 2:006, Sec. 2(3). There is no proof that the flights were not made for a public purpose, and therefore were subject to payment by the state. Again, this was the Commonwealth’s burden to prove.

¶6Despite the Commonwealth’s reliance on the false flight dates as the only evidence of misrepresentation or deception by the defendants, the state finance officials testifying at trial stated that the dates on the invoices were not the determining factor in authorizing payment. Roger Wells, Secretary of Finance and Administration, specifically testified that the false dates were of no consequence, and he would have authorized payment even if the had known that the flights occurred in 1987. The Secretary of Finance is the chief financial officer of the state and is charged with the ultimate decision whether travel expenses are to be reimbursed by the Commonwealth. KRS 42.012. Under 200 KAR 2:006, Sec. 2(4) the Secretary’s interpretation of the regulations involving travel expense and reimbursement is final.1 The Secretary’s testimony concerning whether he would authorize the payment of the invoices knowing the flights occurred in 1987 was as follows:

Q. If those facts had been presented to you that the trip had been in December and all these other facts that I’ve mentioned and those facts had been presented to you, would you have authorized the payment of that bill, assuming that it was up to you to do that?

A Yes, sir.

Q. And under the regulations, you have the right to declare whether or not there should be a reimbursement for travel expenses based upon all these conditions that we’ve spoken about, have you not, sir?

A. Yes, sir.

Q. And would you, sir, certify that the travel expenses should have been reimbursed under those circumstances that I have described to you?

A. Yes, sir.

Q. All right. When I say “reimbursed”, I mean paid to the person that has the money coming; is that correct, sir?

A. With proper documentation, the invoice would have been paid, yes sir.

Q. All right. And if that trip had been taken without getting a prior approval from military affairs, it could still be paid for, even though that didn’t take place and they get subsequent approval; isn’t that correct, sir?

A. That is correct, sir.

Q. And that would be your official interpretation of the state’s right to pay this bill; is that correct, sir?

THE WITNESS: That would be my official interpretation?

MR. HADDAD: Yes, sir.

A. As secretary of finance cabinet—

MR. HADDAD: Yes.

A. —I would have approved the bill had I known the facts as I understand them from the testimony.

Q. Even though the trip was in December?

A. That wouldn’t have had any bearing on it.

¶7From the foregoing, it is clear that, irrespective of the leading nature of the questions to Mr. Wells, (“if the facts were as the defense attorneys put them ...,” Majority Opinion at-), the proof was that the bill would have been paid regardless of the incorrect date.

¶8*872The Commonwealth is charged with proving every element of the offense beyond a reasonable doubt. No witness testified that any state official relied on the erroneous flight dates in the determination to issue payment. No witness testified that the invoices would not have been paid had the correct dates been known. In fact, the proof was to the contrary.

¶9The reliance of the Majority Opinion on Raney v. Stovall, Ky., 361 S.W.2d 518 (1962) disregards the distinguishing facts upon which that decision was founded. Raneyshould be specifically limited to the authority of a public officer to question the validity of a claim against the state and refuse to disburse public funds on the ground that to do so would violate the constitution. It is not alleged, nor proven, that in this case the payment of the invoices would be violative of the Kentucky Constitution. KRS 42.012 and 200 KAR 2:006, Sec. 2(4) clearly authorize the Secretary of Finance to conclusively determine the payment of travel expenses and reimbursement.

¶10There being no evidence upon which a reasonable jury could find the false flight dates were relied on by the Commonwealth to issue payment for the flights, I would hold that the trial court improperly overruled the defendant’s motion for directed verdict and would affirm the Court of Appeals.

¶11LAMBERT and SPAIN, JJ., join in this dissent.