CRIMINAL: JOHNSON V. COM. (COA 8/17/2007)

JOHNSON V. COM.
CRIMINAL:  Evidence
2006-CA-000737
PUBLISHED: REVERSING AND REMANDING
PANEL: THOMPSON PRESIDING; HOWARD, STUMBO CONCUR
COUNTY: OLDHAM
DATE RENDERED: 8/17/2007

CA reversed and remanded Defendant’s conviction for three counts of second-degree forgery. TC committed reversible error by excluding the Defendant’s property settlement agreement.

In this case, Brenda Johnson wrote several checks from her husband’s Prudential account. Brenda had been granted power of attorney over her husband’s financial matters while he was deployed to the Middle East; however, the parties agreed she would not have access to the Prudential account. Brenda and her husband, John, subsequently divorced, and their settlement agreement incorporated the Prudential account into the property division. During the criminal trial, the TC ruled the property settlement agreement irrelevant, and therefore, inadmissible.

By ruling that the settlement agreement did not specifically address the Prudential account, Brenda was precluded from asserting the defense of ownership which could have been decisive in the presentation of a successful defense. From the language of the property settlement agreement, Brenda should have been permitted to assert a co-ownership defense because the agreement specifically addressed the Prudential account as if it was marital property. Moreover, the trial court’s incorrect finding that the agreement did not address the Prudential account, as revealed by the record, improperly influenced its decisions in subsequent rulings. These series of rulings cannot be considered harmless because had the jury believed that Brenda was a co-owner of the property then she would have been entitled to an acquittal of the forgery charges.

CA also concluded that the trial court erred by excluding the settlement agreement during the sentencing and restitution phases of the trial. Certainly, evidence that John and Brenda had settled the Prudential account constitutes restitution to John and should have been admitted as a circumstance surrounding the charged crimes. Upon retrial, if Brenda is convicted, CA held this information should be presented to the jury to aid them in determining an appropriate punishment.

Digested by Scott C. Byrd – www.olginandbyrd.com

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