APPEAL FROM LAWRENCE CIRCUIT COURT HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 10-CR-00111 APPEAL FROM LAWRENCE CIRCUIT COURT HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 10-CR-00113
The opinion of the court was delivered by: Stumbo, Judge:
RENDERED: MAY 3, 2013; 10:00 A.M.
BEFORE: CAPERTON, DIXON AND STUMBO, JUDGES.
Michael and Janie Young appeal from a judgment and sentence on a conditional plea of guilty where they both plead guilty to theft by deception over $10,000. They each reserved the right to appeal the denial of their motions to dismiss the indictment. We find no crime occurred and that the appellants' motions to dismiss should have been granted. We therefore vacate the Youngs' convictions.
The facts were stipulated by the parties and that stipulation serves as a basis for our review. Michael and Janie Young contacted Tracy and Jeff Scholan to adopt a yet unborn child from the Youngs. The Scholans had previously adopted a child from the Youngs. The Scholans began sending money to the Youngs to help pay for pregnancy expenses and general living expenses. Unbeknownst to the Scholans, the Youngs had also contacted Act of Love Adoptions in Boston, Massachusetts to place the child for adoption through the agency. The agency also began sending the Youngs money for pregnancy and living expenses.
When the child was born, the Youngs decided to keep her because the new child was a girl and, up until that point, they had only had male children. In the end, the Youngs received $7,976.99 from the Scholans and $4,000 from Act of Love Adoptions.
When the Scholans discovered the Youngs had also contacted the Boston agency, they contacted the Kentucky State Police (KSP). KSP investigated the matter. The Youngs were later indicted for theft by deception over $10,000 and for being persistent felony offenders. Both moved to dismiss the indictment, arguing that the money received was a gift. The court denied the motions. The Youngs then entered into a conditional guilty plea which reserved the right to appeal the denial of their motions to dismiss. This appeal followed.
Kentucky Revised Statute (KRS) 514.040(1) states: A person is guilty of theft by deception when the person obtains property or services of another by deception with intent to deprive the person thereof. A person deceives when the person intentionally:
(a) Creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind;
(b) Prevents another from acquiring information which would affect judgment of a transaction;
(c) Fails to correct a false impression which the deceiver previously created or reinforced or which the deceiver knows to be influencing another to whom the person stands ...