NOT TO BE PUBLISHED
OPINION
THOMPSON, Judge.
Peter Barth appeals from a Bullitt Circuit Court judgment convicting him of one count of receiving stolen property with a value of $10,000 or more and persistent felony offender in the second degree. He alleges that the trial court erred when it refused to instruct the jury on the lesser included offenses of receiving stolen property over $500 but less than $10,000 and unauthorized use of a motor vehicle. He further argues that under the truth-in-sentencing statute, the trial court erroneously excluded evidence that his sentence would run consecutive with his paroled sentences. Although we find no error regarding the instructions, we conclude evidence that Barth's current sentence must run consecutive to his prior paroled sentences was admissible during the penalty phase and, therefore, reverse and remand for a new sentencing hearing.
Barth was indicted for burglary in the third degree, two counts of theft by unlawful taking of property with a value of $10,000 or more, receiving stolen property with a value of $10,000 or more, possession of a firearm by a convicted felon, and being a persistent felony offender in the second degree. The counts of receiving stolen property and being a persistent felony offender were severed from the other counts and tried before a jury. Barth entered a plea of guilty to the other charges.
At trial, Robert Brenner, an employee of Alex Montgomery Used Cars in Bardstown, testified that on the morning of February 7, 2012, he telephoned the Bardstown Police Department and reported a 1989 Chevy c1500 Silverado was missing from the lot. He testified that he last saw the truck on February 6, 2012.
Brenner testified that he had over two decades of experience in selling and buying automobiles and that all sales from the Alex Montgomery lot were approved by him. He testified that the retail value of the truck was $12,800. He explained that the truck was unique and was of a type a person would display at an automobile show. Various additions had been made to the truck including a new engine and transmission, running boards, a roll bar, a new interior, and power locks and windows. He testified his cost in the truck was $10,000.
Stafford Maraman testified that on February 7, 2012, around 10:30 a.m., Barth arrived at his property driving a Chevy pickup truck. While on Maraman's property, Barth removed the roll bar and bed liner. Barth also spray-painted the front fenders, hood and cab doors, and replaced the truck's license plate. Barth then left in the Chevy pickup truck.
Deputy John Fowler of the Bullitt County Sherriff's Department testified that later that day, Barth was stopped on a traffic stop, arrested on other charges, and the truck he was driving impounded. It was later determined by the VIN that the truck was the one missing from the Alex Montgomery lot. At the time of his arrest, Barth was on parole.
After Barth rested his defense without presenting any evidence, Barth requested instructions on receiving stolen property over $500 but less than $10,000 and unauthorized use of a motor vehicle. The trial court denied both requests.
The jury found Barth guilty of receiving stolen property with a value of $10,000 or more, a Class C felony, and also of being a persistent felony offender in the second degree. Barth was sentenced to seventeen-years' imprisonment.
Barth argues the evidence warranted an instruction on receiving stolen property over $500 but less than $10,000 because the jury could have found the truck's value was less than $10,000 when police found him in possession of the truck. He argues that the value was decreased because certain equipment was missing, including the roll bar, and it was spray-painted. He also argues that Brenner's valuation was only an estimate and the jury could reasonably believe the truck was worth much less. Barth also contends he was entitled to an instruction on unauthorized use of a motor vehicle because there was no direct evidence how he obtained possession of the truck or that he knew it had been stolen.
Both allegations of error are subject to the recognized principles regarding jury instructions. "In a criminal case, it is the duty of the trial judge to prepare and give instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999). A lesser included offense instruction is required "if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense." Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998). A lesser included offense is one "established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]" KRS 505.020(2)(a).
However, a lesser included offense instruction is not automatic.
It is well settled by this court that if the evidence warrants instructing on a lesser degree of the offense, the instruction must be given. It is equally well settled that instruction on a lesser degree may be rejected if the evidence does not warrant it.
Payne v. Commonwealth, 656 S.W.2d 719, 721 (Ky.1983). We review a trial court's rulings on instructions under an abuse of discretion standard. Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006).
KRS 514.110 defines the offense of receiving stolen property as follows:
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;
(b) The value of the property is ten thousand dollars ($10,000) or more, in which case it is a Class C felony[.]
Thus, as statutorily defined, the only difference between a Class D felony and a Class C felony is the value of the property received.
"[T]he value of the property on the date the offender receives the property is the proper date for determining the severity of the violation." Tussey v. Commonwealth, 589 S.W.2d 215 (Ky. 1979). It is well established that the "the testimony of the owner of stolen property is competent evidence as to the value of the property." Commonwealth v. Reed, 57 S.W.3d 269, 270 (Ky. 2001).
We would be inclined to agree with Barth's argument if there was some evidence that he came into possession of the stolen property after it had been partially stripped and spray-painted. Focusing on the severity of the offense being based on the value of the stolen property, the Court in Tussey observed: "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, 589 S.W.2d at 216.
The only evidence presented to the jury regarding when Barth was first seen in possession of the truck was Maraman's testimony. He testified that Barth arrived at his property in the truck and stripped it of some equipment and spray-painted it. Therefore, based on the evidence presented, the only plausible conclusion is that Barth received the truck in the condition testified to by Brenner which Brenner testified was valued at $12,800.
Despite the lack of contrary testimony to Brenner's that the truck had a retail value of $12,800 when removed from the Alex Montgomery lot, Barth contends a lesser included offense instruction was required. As the Court in Allen v. Commonwealth, 148 Ky. 327, 146 S.W. 762-63 (1912), observed:
In cases like this, where the degree of the offense depends upon the value of the property, it often happens that the witnesses will differ as to its value; and, when there is a difference of opinion as to this matter, it is for the jury to form their own conclusion from the evidence as to the value of the property stolen.
The problem here is that there was absolutely no evidence presented by Barth that the truck had a retail value less than $12,800 or a cost value of less than $10,000.
If the truck was worth less than $10,000, it would have been easy to obtain a qualified witness to testify as to its value or, through appropriate cross-examination of Brenner, doubt could have been cast on the truck's value at the time it was first in Barth's possession. The more than a scintilla of evidence necessary to support the lesser included offense instruction would have been provided. However, after a review of the record, we agree with the trial court that there was a complete absence of such evidence and, therefore, it properly denied the requested instruction.
We also conclude that Barth was not entitled to an instruction on the unauthorized use of a motor vehicle.
A person is guilty of the unauthorized use of an automobile or other propelled vehicle when he knowingly operates, exercises control over, or otherwise uses such vehicle without consent of the owner having legal possession thereof.
KRS 514.100(1). In Caldwell v. Commonwealth, 133 S.W.3d 445, 451 (Ky. 2004) (superseded by statute on other grounds recognized in Stansbury v. Commonwealth, 454 S.W.3d 293, 299, n. 1 (Ky. 2015)), our Supreme Court cited the penal code commentary to KRS 514.100 which explains the offense of unauthorized use of a motor vehicle provides criminal sanctions for conduct that does not rise to the level of theft offenses:
This section is directed primarily against `joy riding' generally committed by youngsters. It is necessary because it covers conduct not amounting to theft under other sections of this chapter. There is no intention to deprive the owner of his property or to appropriate property.
An instruction on unauthorized use of a motor vehicle is warranted if the evidence would reasonably support "a belief that [the defendant] possessed the vehicle with the intention of restoring it to its owner-but otherwise conclude beyond a reasonable doubt that he knowingly operated an automobile without the owner's consent." Id.
Here, the record contains no evidence upon which a jury could reasonably find Barth intended to return the truck to the Alex Montgomery lot. Pursuant to KRS 514.110(2), having been found in possession of a recently stolen vehicle, Barth was presumed to have known it was stolen.
Moreover, "intent may be inferred from actions because a person is presumed to intend the logical and probable consequences of his conduct, and a person's state of mind may be inferred from actions preceding and following the charged offense." Stopher v. Commonwealth, 57 S.W.3d 787, 802 (Ky. 2001). After coming into possession of the truck, Barth immediately stripped it of outwardly identifying equipment, painted it, and replaced the license plate. His actions following taking possession of the truck are consistent with knowledge that the pickup truck was stolen and an intent to deprive the owner of future possession. The trial court properly denied Barth's requested instruction on unauthorized use of a motor vehicle.
Barth's final contention is that the trial court erred when it did not permit testimony during the penalty phase that the sentence imposed on the current charge, with the PFO enhancement, would run consecutively to the sentences for which he was on parole at the time of his arrest. During the penalty phase, Barth's probation and parole officer, Scott George, testified that when Barth committed the current offenses, Barth was on parole arising from three different cases. He testified regarding Barth's parole eligibility and defined concurrent and consecutive sentences. On cross-examination, George was asked whether the sentence in the current case would run currently or consecutively with the sentences for which he was on parole. The Commonwealth's objection on the basis that the question asked was a matter of law was sustained.
Barth's sentence for receiving stolen property and persistent felony offender, second degree, must be served consecutive to his paroled sentences. KRS 533.060(2). The question is whether the sentencing jury should be informed of the statutory mandate.
The purpose of Kentucky's truth-in-sentencing legislation is to provide "full and accurate information to the jury and to insure that the sentencing jury is well informed about all pertinent information relating to the person on trial[.]" Commonwealth v. Higgs, 59 S.W.3d 886, 894 (Ky. 2001)(internal quotations and citations omitted). The jury is not "required to sentence in a vacuum without any knowledge of the defendant's past criminal record or other matters that might be pertinent to consider in the assessment of an appropriate penalty." Commonwealth v. Reneer, 734 S.W.2d 794, 797 (Ky. 1987).
KRS 532.055(2)(a) provides that the Commonwealth may offer the following evidence during the penalty phase:
1. Minimum parole eligibility, prior convictions of the defendant, both felony and misdemeanor;
2. The nature of prior offenses for which he was convicted;
3. The date of the commission, date of sentencing, and date of release from confinement or supervision from all prior offenses;
4. The maximum expiration of sentence as determined by the division of probation and parole for all such current and prior offenses;
5. The defendant's status if on probation, parole, post incarceration supervision, conditional discharge, or any other form of legal release;
. . . .
7. The impact of the crime upon the victim or victims[.]
The statute further provides that the defendant "may introduce evidence in mitigation or in support of leniency[.]" KRS 532.055(2)(b).
The statute is "illustrative rather than exhaustive." Cornelison v. Commonwealth, 990 S.W.2d 609, 610 (Ky. 1999). A court may also allow evidence that is "similarly and equally `relevant to sentencing' as those types of evidence the statute explicitly mentions." Garrison v. Commonwealth, 338 S.W.3d 257, 260 (Ky. 2011). In addition to determining whether the evidence is of the "same kind or class" as the types of evidence explicitly mentioned in KRS 532.055(2)(a), the trial court must also consider the evidence that "potentially affect[s] the actual duration of the period of imprisonment imposed by the jury against the defendant." Id. (quoting Cornelison, 990 S.W.2d at 611).
As permitted by subsections (3) and (5) of the statute, the Commonwealth introduced evidence that Barth was on parole when he committed the current offenses and his date of release. We agree with Barth that the statute also permits a defendant to introduce evidence that his current sentence must be run consecutive to his paroled sentences.
"Truth-in-sentencing" means the jury should be informed of the actual effect of its recommended sentence. Our Supreme Court has instructed that the Commonwealth is permitted to present a broad range of evidence concerning the duration of the period of imprisonment imposed against a defendant. Higgs, 59 S.W.3d at 893-94 (permitting evidence of credit for time served).
Our truth-in-sentencing statute specifically includes minimum parole eligibility. KRS 532.055(2)(a)(4). To further the statute's purpose of having a fully informed jury, Barth was entitled to inform the jury he would be required to first serve the remainder of his sentence on his paroled sentences before he began serving his current sentence. Additionally, KRS 532.055(2)(a)(4) states that the jury may be informed of the "maximum expiration of sentence . . . for all such current and prior offenses." (emphasis added). Finally, the defendant is permitted to introduce evidence in support of leniency. KRS 532.055(2)(b). If the jury was informed that Barth's sentence must run consecutive to his paroled sentences, it may have been more lenient in imposing the current sentence.
Because the jury was entitled to hear that the sentence it imposed would be served consecutively to Barth's prior sentences, we reverse and remand for a new sentencing hearing. In all other respects, the judgment of the Bullitt Circuit Court is affirmed.
ALL CONCUR.
