Request By:
Captain John C. Tobin
Administrative Law Officer /JAGC
HQ U.S. Army Armor Center and Fort Knox
Fort Knox, Kentucky 40121
Opinion
Opinion By: Steven L. Beshear, Attorney General; William L. Davis, Assistant Attorney General
This is in response to your letter dated November 23, 1982. You stated the following:
To foster a more precise application of Kentucky substantive law on the federal enclave of Fort Knox, Kentucky, under the Assimilative Crime Act, 18 USC 13, this office requests your kind assistance by the publication of an opinion of the Attorney General in response to the question detailed below. The question relates to the applicability, not the assimilability, of KRS 514.070, Theft by failure to make required disposition of property, to the following fact pattern.
A federal supervisory employee is entrusted, in accordance with established Army Regulations, with a substantial quantity of tangible property, e.g. chain saws, hand-tools and similar impliments [sic]. The employee, in the normal exercise of his duties, is responsible for the management of an equipment loan operation for use of these impliments [sic] by authorized personnel on Fort Knox. During an annual audit of this operation a substantial property deficit was detected. Following investigation by U.S. Army Military Police, a factual determination was made that property of a value in excess of one-thousand dollars was lost as the result of grossly negligent, not criminal, conduct. In response to an alarming increase in the incidence of such losses at Fort Knox, a policy determination was made to consider criminal prosecution of a civilian employee in U.S. Magistrate Court in the most egregious case of such negligent loss.
The question submitted for your consideration has two interdependent components. First, whether 'accounts' under KRS 514.070 (3)(b)2 may be construed to include the 'property accounts' of the equipment loan operation, mentioned above. If 'accounts' may be so construed, may the presumption as to government employees contained in KRS 514.070(3) be interpreted to provide a statutory substitute for the mensrea otherwise necessary for criminal prosecution under KRS 514.070(1)(b)?
This office requests that your advice take the form of published opinion in order that others may benefit from the guidance here requested. Your assistance in this matter is greatly appreciated. [Emphasis added].
In order to adequately answer your first question, it will be necessary to examine from the outset KRS 514.070 and the commentary to said statute. KRS 514.070 states the following:
(1) A person is guilty of theft by failure to make required disposition of property received when:
(a) He obtains property upon agreement or subject to a known legal obligation to make specified payment or other disposition whether from such property or its proceeds or from his own property to be reserved in equivalent amount; and
(b) He intentionally deals with the property as his own and fails to make the required payment or disposition.
(2) The provisions of subsection (1) apply notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the actor's failure to make the required payment or disposition.
(3) An officer or employe of the government or of a financial institution is presumed:
(a) To know any legal obligation relevant to his criminal liability under this section; and
(b) To have dealt with the property as his own when:
1. He fails to account or pay upon lawful demand; or
2. An audit reveals a shortage or falsification of accounts.
(4) Theft by failure to make required disposition of property received is a Class A misdemeanor unless the value of the property is $100 or more, in which case it is a Class D felony. (Enact. Acts 1974, ch. 406, § 123.)
The official Commentary (1974) to the above statute states as follows:
This section does not materially change pre-existing law. KRS 434.020 related to misapplication of moneys, bonds, notes and other property of a state or political subdivision by the custodian, and KRS 434.030 covered embezzlement of property entrusted to a person for delivery. Both statutes are included within the coverage of this section. [Emphasis added].
Based upon the foregoing authorities, it is our opinion that "accounts" under KRS 514.070 (3)(b)(2) include the "property accounts" of the equipment loan operation mentioned above.
Directing our attention to your second question, it will be necessary for us to examine a few basic principles before providing an answer. It has been stated that the essential evil or guilty intent may ordinarily be inferred by the jury from the commission of the act charged. However, when a specific intent is an element of crime then the intent must be proved. In other words, where a statute denounces the doing of an act as criminal, the law imputes criminal intent from the doing of the act; but where it denounces its wilful doing, a specific wrongful intent must be shown. 29 AM.JUR.2d Evidence § 204, p. 258.
Moreover, mensrea has been defined as a criminal intent; wilfullness. Black's Law Dictionary (Fifth Edition 1979).
And, it must be kept in mind that a presumption may be indulged only so long as there is no substantial evidence to the contrary for when such evidence is offered the presumption disappears and issues must be decided on evidence. Carroll v. Carroll, Ky., 251 S.W.2d 989 (1952). In other words, a presumption is an assumption made by the law that a strong inference of fact is prima facie correct, and will therefore sustain the burden of evidence, until conflicting facts on the point are shown. Where such evidence is introduced, the presumption is functus officio and drops out of sight. 31A C.J.S. Evidence § 117, pp. 210-211. Compare: Wells v. Commonwealth, Ky., 561 S.W.2d 85 (1978), which was cited with approval in Commonwealth v. Miller, Ky., 575 S.W.2d 467, 468 (1978). In Wells, the court stated the following:
Wells complains of a part of the court's instructions on the receiving stolen property counts. The court instructed the jury on the rebuttable presumption of knowledge, embodied in KRS 514.110(2), that arises from the possession of recently stolen moveable property. To so instruct was prejudicially erroneous. Reversal of these convictions, and a new trial of these counts are required.
When the court tells the jury what presumption arises from certain stated facts, it invades the province of the jury. Tines v. Commonwealth, Ky., 77 S.W. 363 (1903). This rule applies to the statutory evidentiary presumption of guilty knowledge which arises from the possession of recently stolen moveable property. Jones v. Commonwealth, 291 Ky. 719, 165 S.W.2d 566 (1942); Botnick v. Commonwealth, 266 Ky. 419, 99 S.W.2d 188 (1936). The arguments of the Commonwealth do not persuade us to either abandon or modify this rule.
Furthermore, KRS 501.050 states:
A person may be guilty of an offense without having one of the culpable mental states defined in KRS 501.020 only when: (1) The offense is a violation or a misdemeanor as defined in KRS 508.080 and no particular culpable mental state is included within the definition of the offense; or (2) The offense is defined by a statute other than this Penal Code and the statute clearly indicates a legislative purpose to impose absolute liability for the conduct described.
The Commentary to this section also states:
COMMENTARY (1974)
The purpose of KRS 501.050 is to impose tight restrictions upon the imposition of criminal sanctions for conduct unaccompanied by a culpable mental state. Insofar as offenses defined in this code are concerned, such sanctions are permissible only for those classified as 'violations,' a term used to designate offenses for which no imprisonment is imposed, and those classified as misdemeanors. For offenses defined outside this code, criminal liability in the absence of a culpable mental state is permissible if a legislative intent to impose such liability clearly appears. Allowance for absolute liability under these limited circumstances is justified because of the difficulty of proving culpability for certain classes of offenses. A broader allowance cannot be justified, and this section intends to express a judgment to that effect through a general policy adverse to the use of the strict liability doctrine.
Relationship to Pre-existing Law: The existence of absolute liability as a basis of criminality under pre-existing law cannot be questioned. Duncan v. Commonwealth, 158 S.W.2d 396 (1942). In applying this doctrine, Kentucky courts, like those of most other jurisdictions, have experienced only one major problem: When should statutory offenses not expressly requiring a culpable mental state be construed to impose absolute liability? For offenses defined by this code, KRS 501.050 eliminates this problem. If the offense in question is a violation or a misdemeanor, and no culpable mental state is provided in its definition, it is one of 'absolute liability. ' Otherwise, it is one of 'mental culpability. ' For offenses defined by other Kentucky statutes, KRS 501.050 alleviates the problem by indicating a clear preference for offenses of 'mental culpability' over offenses of 'absolute liability. '
Also, KRS 501.020 defines intentionally and states that this definition applies throughout the Kentucky Penal Code.
Therefore, it is our opinion that the presumption as to government employees contained in KRS 514.070(3) is only a rebuttable presumption and not a statutory substitute for the mensrea stated in KRS 514.070(1)(b). In other words, employees of the government are presumed to know the relevant legal obligations as they relate to imposition of criminal liability. Further a government employee is presumed to have dealt with the property as his own, if upon lawful demand, he fails to account or pay, or if a shortage or falsification of accounts is revealed by an audit. Thus, these rebuttable presumptions do not create strict liability and cannot be used as a statutory substitution for the mensrea requirement in said statute.
We hope that the Office of the Attorney General has been of some assistance in this matter.