NOT TO BE PUBLISHED

OPINION

NICKELL, JUDGE.

Billy Kennard was convicted following a jury trial in Scott Circuit Court on charges of theft by unlawful taking over $300.001 and criminal mischief in the third degree.2 He was acquitted of a charge of burglary in the second degree.3 Following the jury's verdict, Kennard entered a conditional guilty plea to being a persistent felony offender in the second degree (PFO II).4 The Commonwealth recommended a sentence of one-year imprisonment on the theft charge to be enhanced to six years by virtue of the PFO II conviction, and a concurrent ninety-day sentence on the criminal mischief charge. The Commonwealth also requested restitution. The trial court sentenced Kennard in accordance with the Commonwealth's recommendation and ordered him to pay $1,000.00 in restitution. He now appeals his conviction as a matter of right. We affirm.

Over the weekend of October 7, 2007, the offices of Shady Creek Trucking located in Georgetown, Kentucky, were burglarized and several items were removed from the property, including two computer monitors, a printer, a postal meter and $100.00 in cash. A rear window of the office had been broken to effect the theft. Upon his arrival at the office, Cary Hall, the owner of the company, discovered the break-in and contacted the Scott County Sheriff's Office to report the matter. Deputy Jeff Hollon was dispatched to investigate. Dep. Hollon removed the broken window and sent it for fingerprint analysis. An analyst at the Kentucky State Police Crime Lab found fingerprints on the window and determined they belonged to Kennard.

Dep. Hollon, accompanied by members of the Georgetown Police Department, went to Kennard's apartment to question him regarding the break-in. Officers discovered Michael Lebanion, a Shady Creek Trucking employee, in the bathroom and placed him under arrest on outstanding warrants. Kennard accompanied Dep. Hollon to the Sheriff's office. Kennard denied all knowledge of the burglary or the stolen items and requested counsel. He was subsequently arrested and charged with burglary, theft by unlawful taking, and criminal mischief. The grand jury returned an indictment for those offenses and for being a PFO II.

Kennard proceeded to a jury trial convened on February 16, 2009. The jury returned guilty verdicts on the theft and criminal mischief charges. Following the verdict, Kennard entered a conditional guilty plea pursuant to RCr5 8.09 to the PFO II. The Commonwealth recommended a sentence of one year on the theft, enhanced to six years by virtue of the PFO II.6 The trial court sentenced Kennard in accordance with the recommendation and ordered him to pay $1,000.00 in restitution. This appeal followed.

Kennard contends the evidence was insufficient to support a conviction on the theft and criminal mischief charges as the Commonwealth failed to produce evidence of his involvement in either crime and the trial court erred in refusing to grant his motion for a directed verdict. Kennard also challenges the trial court's entry of the restitution order without first convening a hearing. We disagree with Kennard's arguments and affirm the trial court.

First, Kennard argues there was insufficient evidence presented that he was involved in any theft from Shady Creek Trucking or that he intentionally or wantonly broke the window at their offices. He contends the Commonwealth merely produced evidence that his fingerprints were on the outside of the broken window from the office where the items had been stolen, which proved nothing more than he had touched that window at some unknown point in time. He further alleges the Commonwealth failed to prove he intended to deprive the business of the office equipment or cash taken from its office. Thus, he contends the trial court should have directed a verdict in his favor on the theft and criminal mischief charges and its failure to do so constituted reversible error. We disagree.

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)).

Here, the jury was presented with the uncontroverted evidence that Kennard's fingerprints were located on the outside of the window which investigators believed was broken to accomplish the theft, as no other means of ingress or egress appeared to have been utilized. The Commonwealth presented testimony that these prints had to have been left within a two-week period prior to the theft. Testimony revealed that the other windows in the office were at least partially obscured by office equipment, that the exterior doors were padlocked, and that none of the locks or other windows had been disturbed during the break-in. Testimony was elicited that Kennard was familiar with the office layout and its contents based on his association with Lebanion. Further testimony revealed that the office had not been ransacked nor had furniture or papers been overturned or displaced. Hall testified as to the cost to replace the missing items and to repair the damaged window. The trial court determined, upon being asked to pass on the directed verdict motion, that the Commonwealth had presented sufficient proof in its case-in-chief to allow a reasonable juror to find guilt on the charged offenses.

Kennard, Lebanion, and his wife, Heather Lebanion, all testified for the defense. Lebanion and Kennard painted a picture that they had been in the office a few days prior to the burglary looking for keys to a truck and that "someone" from the business had seen them there. They each stated that Kennard would regularly drive Lebanion to work and would "hang out" around the shop. Rebuttal witnesses contradicted their accounts, noting they had never seen Kennard on the premises—especially not in the office area—and that Heather was the only person they had ever seen bring Lebanion to work or pick him up after his shift. The trio's testimony was inconsistent—both internally and with the testimony of other witnesses—on numerous other matters. The trial court was unpersuaded by the renewed motion for directed verdict, as the defense case had merely added inconsistent and contradictory testimony which had been rebutted by the Commonwealth's witnesses. We hold the trial court was correct in its assessment of the matter.

A jury is free to draw inferences from the proof presented, Dillingham v. Commonwealth, 995 S.W.2d 377, 380 (Ky. 1999), and is charged with assessing the weight and credibility of the evidence. Commonwealth v. Smith, 5 S.W.3d 126, 129 (Ky. 1999). Under the facts elicited at trial, the jury could easily have concluded Kennard broke the window and accomplished the theft alone, or, as the Commonwealth posited as an alternative theory of the case, that he had an unknown accomplice whom he assisted in carrying out the nefarious plan. The lack of an eyewitness to the crime or the failure of the police to recover the stolen goods does not persuade us the jury's judgment was based on "improper inferences upon inferences" as Kennard urges in seeking reversal. Although circumstantial, there was evidence of substance presented that supported the Commonwealth's theory of the case, and Kennard's assertions to the contrary are without merit. Contrary to Kennard's contention, we do not believe it was clearly unreasonable for the jury to find him guilty of theft by unlawful taking or criminal mischief. Thus, he was not entitled to a directed verdict of acquittal. Benham.

Finally, Kennard contends the trial court erred in ordering him to pay $1,000.00 in restitution without first convening a hearing. Our review of the record reveals no objection was lodged to the entry of an order for restitution nor the amount owed. As such, the issue is unpreserved for appellate review. Kennard has requested review under the palpable error standard set forth in RCr 10.26.

Kennard contends the trial court took as true the Commonwealth's statement that restitution in the amount of $1,000.00 was due without having any evidence to support such a finding. He believes the trial court should have convened a hearing to determine the amount of restitution owed and to grant him a "meaningful opportunity to controvert" the evidence against him.

Although Kennard correctly states the general rules applicable to sentencing hearings, we believe his argument is without merit. The trial court had taken testimony during the guilt phase as to the amount of loss sustained as a result of the crimes for which Kennard stood convicted. When Kennard was given the opportunity at the sentencing hearing to address the issue of restitution, he instead turned the discussion toward allegations that he had "lied to the jury" during his testimony. Based on the factual statements made during the trial by the victim identifying the amount of loss and Kennard's complete lack of concern for the restitution amount during the sentencing hearing when given the opportunity to address it, we are unable to conclude that a manifest injustice resulted from the entry of the restitution order. There was no palpable error.

For the foregoing reasons, the judgment of the Scott Circuit Court is affirmed.

ALL CONCUR.