“Disposal-Likelihood” & Fair-Market Valuation:
Ooten v. Commonwealth Clarifies Kentucky’s Directed-Verdict Thresholds in Theft and Criminal Mischief Cases

1. Introduction

In Jesse Ooten v. Commonwealth of Kentucky (Ky. Sup. Ct. Aug. 14, 2025), the Supreme Court of Kentucky affirmed convictions stemming from a bizarre home-entry incident that left a television shattered, a gun safe destroyed, and a handgun missing. Although the decision is officially “not to be published” under RAP 40(D), it furnishes important clarifications on two recurring trial-management questions:

1. When must a trial judge grant a directed verdict of acquittal on a charge of theft by unlawful taking where the accused claims no intent to “permanently” keep the property?
2. How should a jury measure “pecuniary loss” for criminal mischief—by actual repair invoices or by the fair-market value of the property destroyed?

The Court’s answers refine the evidentiary thresholds for KRS 514.030 (theft) and KRS 512.030 (second-degree criminal mischief) and reaffirm the “fair-market-value” approach first announced in Crain v. Commonwealth.

2. Summary of the Judgment

The Court unanimously upheld the Kenton Circuit Court’s verdict and concurrent twenty-year sentence, finding:

• Theft by Unlawful Taking (handgun). Evidence that the pistol was disposed of in a manner making recovery unlikely was enough for a reasonable juror to infer intent to “deprive” under KRS 514.010(1)(b).
• Second-Degree Criminal Mischief. Applying the Crain fair-market-value rule, the jury could aggregate the market values of the window, gun safe, and television to surpass the then-statutory $500 threshold, even though the victim’s actual out-of-pocket expenditure was lower.
• Directed Verdicts. Under Commonwealth v. Benham and Lamb v. Commonwealth, the trial court rightly denied Ooten’s motions because the Commonwealth’s evidence, taken as true, could induce a reasonable juror to find guilt beyond a reasonable doubt.

3. Analysis

3.1 Precedents Cited

• Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)
  —Articulated the duty to draw all reasonable inferences in the Commonwealth’s favor when ruling on a directed-verdict motion.
• Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991)
  —Created the “clearly unreasonable” standard for appellate review of directed-verdict denials.
• Lamb v. Commonwealth, 510 S.W.3d 316 (Ky. 2017)
  —Reaffirmed Benham and framed the review question as whether a guilty finding would be “clearly unreasonable.”
• Talbott v. Commonwealth, 968 S.W.2d 76 (Ky. 1998) & Stopher v. Commonwealth, 57 S.W.3d 787 (Ky. 2001)
  —Allowed intent to be inferred from the act itself and its surrounding circumstances; defendants are presumed to intend the natural consequences of their acts.
• Hall v. Commonwealth, 551 S.W.3d 7 (Ky. 2018)
  —Held that mere indifference is insufficient to prove intent to permanently deprive; cited by Ooten but distinguished by the Court.
• Johnson v. Commonwealth, 694 S.W.3d 232 (Ky. 2023)
  —In dicta, noted that property left in an “easily locatable area” may negate permanent deprivation. The Court found the handgun here was not easily locatable.
• Crain v. Commonwealth, 257 S.W.3d 924 (Ky. 2008)
  —Established that “pecuniary loss” equals fair-market value, not the victim’s receipts.

3.2 Legal Reasoning

1. Theft: “Intent to Deprive.”
   The statutory alternative in KRS 514.010(1)(b)—disposing of property so as to make recovery “unlikely”—does not require proof of an intent to keep the property forever. By discarding the weapon in a sewer and causing it never to be recovered, Ooten satisfied the statutory definition even if his subjective goal was suicide rather than gain. The Court found his post-verdict suicide narrative procedurally unpreserved and substantively immaterial.
2. Criminal Mischief: “Pecuniary Loss.”
   The Court reaffirmed Crain: the jury looks to fair-market value, not what the victim actually spent. Competent, uncontested testimony put the items’ aggregate market value over $950—comfortably beyond the $500 statutory floor.
3. Directed-Verdict Standard Reapplied.
   By treating the Commonwealth’s evidence as true and giving it all favorable inferences (Sawhill/Benham), the trial judge properly left both counts to the jury. On appeal, because a guilty finding was not “clearly unreasonable,” affirmance was required.

3.3 Impact of the Decision

• Evidence of Disposal Matters More Than Motive.
  Practitioners should note that when an item is unrecovered despite prompt police search, a jury may infer intent to deprive, neutralizing defenses based on putative “temporary” use or distress-driven motives.
• Fair-Market Value Remains the Benchmark.
  The Court’s renewed endorsement of Crain forecloses defense arguments that only receipts or discounted replacement costs control criminal-mischief grading.
• Procedural Preservation Reminder.
  Defendants must introduce evidence of mitigating intent during the guilt phase; reserving it for sentencing or appeal forfeits the argument.
• Trial Strategy in Property-Crime Cases.
  Prosecutors will likely highlight disposal locations and thorough yet futile recovery efforts. Defense counsel, conversely, must produce affirmative evidence of easy retrievability or prompt return to contest the “unlikely recovery” element.

4. Complex Concepts Simplified

Directed Verdict

A ruling by the trial judge that evidence is so weak no reasonable jury could convict; the case never reaches the jury on that count.

Intent to “Deprive”

Under Kentucky law, this means either (a) keeping property permanently or long enough to take most of its value, or (b) disposing of it so recovery is unlikely.

Fair-Market Value vs. Replacement Cost

Fair-market value is what a willing buyer would pay a willing seller for the item in its condition immediately before loss, not necessarily what the owner later paid (or bargained) to replace it.

Persistent Felony Offender (PFO-1)

An enhancement statute escalating penalties for defendants with prior serious felony convictions.

5. Conclusion

While Ooten v. Commonwealth carries a “not-to-be-published” label, its analytic heft is undeniable. The Court:

• Confirmed that discarding property where it is never recovered constitutes an intent to deprive, even absent plans to keep or profit from the item.
• Reaffirmed Crain’s fair-market-value rule, enabling juries to rely on mainstream retail prices to calculate pecuniary loss.
• Reiterated the rigorous but defendant-friendly directed-verdict framework: judges must deny dismissal motions unless guilt findings would be “clearly unreasonable.”

The decision offers a blueprint for prosecutors to establish intent and value in property offenses and reminds defense counsel of the evidentiary burdens that must be met—early and concretely—to secure acquittal. Although technically uncitable as precedent, the reasoning is poised to influence trial-court practice and appellate argumentation across Kentucky’s criminal docket.