Released for Publication May 8, 2014.
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2010-CA-000298-MR. LAUREL CIRCUIT COURT NO. 09-CR-00186.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General; Jason Bradley Moore, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, Kentucky.
COUNSEL FOR APPELLEE: Karen Shuff Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Kentucky.
OPINION OF THE COURT BY JUSTICE NOBLE. All sitting.
Abramson, Keller and Venters, JJ., concur.
Scott, J., concurs in part and dissents in part by separate opinion in which Minton, C.J., and Cunningham, J., join.
AFFIRMING IN PART, AND REVERSING IN PART
The Appellee, Christine Goss, was convicted of two counts of theft of identity under KRS 514.160 and found to be a persistent felony offender. Her convictions stem from allegations that she filed a tax return and obtained a tax refund in her daughter's name, and that she opened credit card accounts and obtained checks using her ex-husband's name. The Court of Appeals reversed both convictions, finding that there was insufficient proof that the Appellee committed identity theft and thus concluded that she was entitled to a directed verdict of acquittal. This Court granted discretionary review and, after a thorough review of the record, the judgment of the Court of Appeals is affirmed in part and reversed in part.
Goss's indictment and convictions arose from the following facts.
Vance Garrison, Goss's ex-husband, claimed to have experienced two incidents of identity fraud. He claimed that in November 2007, he began receiving telephone calls from several credit card companies stating that he owed them money on open credit accounts. Vance, claiming not to have opened these accounts himself, reported these accounts as fraudulent to the credit card company.
Vance also claimed that in April 2008, he received checks associated with an open checking account at Washington Mutual Bank. The checks were originally addressed to " Vance Garrison, 2118 Highway 490, Apartment 9, East Bernstadt, Kentucky," which was not his address.
Nevertheless, Vance received the checks at his post office box because an observant postal worker recognized Vance's name on the envelope, realized the address on the envelope was incorrect, and transferred it to his regular post office box. The package containing the checks was postmarked in April 2008. Vance recognized the address as a previous address of Goss.
The record shows that Vance filed an incident report with the Laurel County Sheriffs Department on May 13, 2008. The report, however, is not in the record, and its exact contents are not known to this Court.
The second series of alleged identity theft relates to Goss's daughter, Syreeta Garrison. Syreeta was in jail from March 21, 2008 to September 19, 2008 for welfare fraud. After she was released from jail, she and her husband, John Clancy, although estranged at the time, filed a joint state tax return for 2007. The couple filed their return with the Kentucky Department of Revenue on October 8, 2008. The October return reported that Syreeta had earned $551.00 while working at a local tobacco store and that John earned an income from a local bakery.
After the couple filed their joint return, John received a letter from the Kentucky Department of Revenue stating that the couple's joint tax return failed to reflect previous income reported by Syreeta on a tax return electronically filed in March 2008. The letter stated that Syreeta had failed to report $10,371.28 in wages from Sav-U-Mor, a grocery store in London, Kentucky, a $1,242 student interest loan deduction, and a $270 tax refund on the second tax return. As such, the Kentucky Department of Revenue adjusted the couple's joint return to reflect the additional income.
Syreeta claimed that she immediately believed her mother was responsible for filing the March return in Syreeta's name because her mother had been previously employed at Sav-U-Mor. Because of her suspicions, Syreeta requested a copy of all
the tax returns filed in her name for 2007. In response to her request, she received a copy of the October return, which she filed with her husband, and the electronically filed March return. The copy of the March return showed that it had been filed using Syreeta's name and social security number. But the address for the return--2118 Highway 490, Apartment 4, East Bernstadt, Kentucky--was not hers (nor was the employment information for the Sav-U-More income hers). Syreeta recognized the address as a former address of her mother.
Syreeta also claimed that she suspected her mother had taken out credit cards in her name while she was in jail. She filed incident reports with the Laurel County Sheriffs Department on two occasions in October 2008. Each report concerned different credit card accounts that were opened in her name, and contained general statements that she believed her mother was responsible for opening the accounts because many of the accounts had been opened while she was in jail. Although these police reports were filed, no additional investigation was done by the Laurel County Sheriff's Department at that time.
Based on these facts, Goss was indicted in this case for three counts of identity theft--one for both the credit cards and checks in her ex-husband's name, one for the credit cards in her daughter's name, and one for the tax return in her daughter's name--and was alleged to be a second-degree persistent felony offender.
The trial court granted a directed verdict of acquittal as to the charge based on credit cards in the daughter's name but allowed the other charges to go to the jury. The jury convicted Goss on the remaining two counts. Goss then entered into a sentencing agreement with the Commonwealth. Under this agreement, Goss pled guilty to being a second-degree persistent felony offender and agreed to a five year prison sentence for each conviction of identity theft enhanced to seven years, by virtue of her PFO status, with the sentences to be served concurrently for a total of seven years in prison.
The Court of Appeals reversed both convictions. The Court of Appeals found that Goss's motion for a directed verdict, which had not stated specific grounds, failed to preserve her claim for ordinary appellate review. The court therefore reviewed the claim for palpable error under Criminal Rule 10.26, which allows relief for an unpreserved error only if the error is palpable and affects a party's substantial rights and results in a manifest injustice. The Court of Appeals held that Goss met this high standard because there was insufficient evidence to prove each element of her convictions for identity theft under KRS 514.160(1)(b) and (c) beyond a reasonable doubt, and thus the trial court's denial of Goss's motion for a directed verdict constituted a violation of her due process rights under the United States and Kentucky constitutions. In analyzing the proof at trial, the Court of Appeals observed that the case against Goss consisted only of circumstantial proof, and that while direct evidence was not essential for an identity-theft conviction, the evidence had to show more than a mere suspicion of guilt. The court concluded that the evidence in this case did nothing more than raise a suspicion.
This Court granted discretionary review to address whether the proof in this case was sufficient to uphold Goss's conviction.
The Commonwealth's principal argument is that the Court of Appeals misapplied the palpable error standard when it concluded that there was a lack of proof " directly ...