dissenting.
Respectfully, I dissent.
The language of KRS 434.650 and KRS 434.690 consolidates all fraudulent credit card transactions which occur during a six-month period into one offense by prohibiting and punishing the course of conduct over that six-month period. Whether a series of acts constitutes an offense or a series of offenses depends upon whether the evidence discloses one general intent or separate intents. People v. Camillo, 198 Cal.App.3d 981, 244 Cal.Rptr. 286 (1988); see also State v. Gonsalves, 476 A.2d 108 (R.I.1984); State of Hawaii v. Daly, 4 Haw.App. 52, 659 P.2d 83 (1983); People v. Tarlton, 91 Ill.2d 1, 61 Ill.Dec. 513, 434 N.E.2d 1110 (1982).
Courts must follow a statute where the statute’s language is clear and unambiguous. See Lydic v. Lydic, Ky.App., 664 S.W.2d 941 (1983). Moreover, any doubts in the construction of a penal statute should be resolved in favor of lenity and will be against turning a single transaction into multiple offenses. Boulder v. Commonwealth, Ky., 610 S.W.2d 615 (1980) (overruled on other grounds in Dale v. Commonwealth, Ky., 715 S.W.2d 227 [1986]).
The trial court incorrectly interpreted the applicable statutes and Lewis was wrongfully convicted of two felony counts of fraudulently using a credit card, as he should have been indicted and convicted of only one count. The legislature provided, by statute, that if the value of all dollars or goods received exceeds $100 in any six-month period, a person is guilty of a Class D felony.
Commonwealth v. Bass, Ky., 777 S.W.2d 916 (1989), is distinguishable as the statute at issue therein did not aggregate the amounts of items or dollars received over a specified period of time to constitute one felony.
The absolute language of KRS 434.650 and KRS 434.690, whether intended or not by the drafters, affords an absurd result (and we agree with the majority in this respect). However, it appears that the concept of “intention” proves to be awkward for both literary and legal minds. Asking what did the legislature really mean is analogous to asking what did Shakespeare really mean. I would state that the Court, at this time, lacks the evidence for answering such questions satisfactorily and certainly the mere asking is an invitation to irrelevance. See Gibson, Literary Minds and Judicial Style, 41 N.Y.U.L.Rev. 915, 920-21 (1961).
I would affirm the Court of Appeals in reversing the trial court as to the second count of fraudulent use of a credit card and would remand this matter to the trial court with directions to set aside the second count of fraudulent use of a credit card and for a modification of Lewis’s sentence.
STUMBO, J., and D. SCOTT FURKIN, Special Justice, join in this dissent.