dissenting.
Mr. Taylor maintains that he was entitled to a lesser included offense instruction setting forth the reporting duties for insurance agents in KRS 304.9-400. The issue before this Court is whether KRS 304.9-400 constitutes a lesser included offense, and if so whether the proof justified the giving of an instruction on such offense.
Luttrell v. Commonwealth, Ky., 554 S.W.2d 75 (1977) sets forth the rule that an instruction on a lesser included offense should only be given where a reasonable juror could doubt the guilt as charged but conclude guilt on a lesser included offense. Here, Taylor maintained that his actions were based on the belief that Transamerica was owed less than the amount which it claimed, and that Taylor lacked the requisite intent to deal with Transamerica’s money as his own. Taylor admits that Transamerica was owed some $24,000, rather than the $54,000 which it claimed. Taylor did not pay Transamerica the $24,-000 he admitted owing. Taylor did issue checks to Transamerica for a large portion of the amount he admitted owing; he stopped payment on the first check and a replacement cheek bounced. Despite this, Taylor testified that he always had the funds available to make such payment. Whether, how much of and why Taylor spent the money he was to hold was in dispute.
Theft by failure to make required disposition contains the same elements as KRS 304.9-400 on these facts with one exception. The theft statute requires that the defendant “intentionally” deals with the property as his own, while KRS 304.9-400 provides that the premiums “shall not be misappropriated or converted (to the agent’s) own use.” The insurance statute requires no particular mental state, and a person could be convicted under this statute with no particular culpable mental state since it is a “violation,” KRS 501.050(1). Even if a culpable mental state were required for conviction under KRS 304.9-400, it would undoubtedly be less than the “intentional” standard required by the theft statute, KRS 501.040. Since KRS 304.9-400 requires less culpability than KRS 514.-070, it constitutes a “lesser” offense.
The only issue then remaining is whether a reasonable juror could doubt guilt as charged but conclude guilt on KRS 304.9-400. While it is plain that sufficient evidence was adduced to allow a conviction on the theft charge, it is also plain that a jury might well have believed that Mr. Taylor did not “intentionally” deprive Trans-america of its property, that money was available at all times to pay Transamerica, and that the parties were involved in a good faith dispute as to the amount of premiums owed. All of these issues go to culpable mental state, and a jury is not required to conclude, despite the majority’s opinion to the contrary, that Taylor “intentionally” treated these monies as his own. This being the case, Mr. Taylor was entitled to have the jury conclude whether his conduct might have violated KRS 304.9-400 without rising to the severity of actions proscribed by KRS 514.070. Since the jury was given no choice other than to convict under the more severe theft statute or to acquit, this was error. This matter should be reversed and remanded for new trial with, upon similar proof, an additional instruction (not in lieu of an instruction under KRS 514.070) allowing the jury to conclude guilt under KRS 304.9-400.