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COMMONWEALTH OF KENTUCKY APPELLANT 

ON REVIEW FROM COURT OF APPEALS 

V. CASE NO. 2012-CA-001697 

FAYE'ITE CIRCUIT COURT NO. 12-CR-0136 

CATON KAMIL JONES APPELLEE 

OPINION OF THE COURT BY CHIEF JUSTICE MINTON 

REVERSING 

In our popular culture, operation of a criminal syndicate is commonly 

associated with the underworld activities of mobsters and crime bosses. This 

case involves none of those things. Today we must determine whether 

wholesale enlistment of homeless men as tools in a scheme systematically to 

defraud cell-phone companies is likewise covered under Kentucky's organizedcrime statute. We hold that it is. 

I. FACTS AND PROCEDURAL BACKGROUND. 

Caton Jones and Salena Anderson were Detroit, Michigan, residents with 

a get-rich-quick plan. The plan involved driving to Lexington, Kentucky, and 

employing homeless men to sign up for two-year cell-phone service contracts 

with no intent to make payments in order to obtain high-end international 

smartphones at discounted rates. A particular Blackberry phone with 
international service was very popular on the secondary market and could be 

purchased at a greatly discounted rate from service providers if the purchaser 

agrees to a two-year service contract. Jones and Anderson would pay each 

homeless person $20 for his efforts and resell the activated phones on the 

secondary market to a great monetary windfall. 

Lexington Police Department Detective Kevin Duane received a phone call 

from the loss-prevention manager at an area Best Buy that a homeless man 

was attempting to purchase a cell phone. Detective Duane went to the store 

and approached the homeless man, ultimately convincing him not to purchase 

the phone. He followed the man outside the store and observed him speaking 

to another man in a van. Detective. Duane approached the man in the van and 

learned he was from Detroit; the man eventually explained to the detective the 

entire scheme. The Michigan man believed he was simply exploiting a loophole 

in the law. For whatever reason, Detective Duane did not take him in for 

questioning. 

Over the course of the next several months, the Lexington Police 

Department received reports from a number of cell-phone retailers that the 

homeless cell-phone scam continued. But each time law enforcement arrived at 

the store, the men (and the van) had already left. Later, Detective Duane finally 

apprehended one of the phone purchasers. After reading the man his Miranda 

rights, the man informed him he was a resident of a local homeless shelter and 

he was recruited by people in a van offering each resident $20 for every cell 

phone purchased. To be sure, the man had purchased several cell phones (and 

contracts) that day. And he admitted to Detective Duane that he had no 

intention of honoring the two-year service contract he signed at each location. 

2 
Detective Duane then followed the man outside the store to the van in 

the parking lot. Around the same time, Jones was returning to the van from a 

similar cell-phone retailer nearby. Detective Duane also found Anderson and a 

number of other men sitting in the back of the van. Jones was very cooperative 

with Detective Duane, and fully explained the situation. After obtaining 

consent to search the van, he also discovered several cell phones, a 

handwritten budget detailing the entire operation, and receipts for phones and 

service contracts purchased by twelve different people. Jones and Anderson 

were then taken to police headquarters and Jones provided a recorded 

statement after receiving his Miranda warnings. Detective Duane then seized 

all of their equipment and cell phones, leaving them just enough cash to return 

to Detroit. 

Jones and Anderson were charged with one count of "Engaging in 

Organized Crime: Criminal. Syndicate by managing, supervising, and/or 

directing individuals to acquire retail merchandise including cell phones, by 

deception and/or fraud, with the intent to resell it." Detective Duane admitted 

that though the homeless men could certainly be charged under the organized 

crime statute as well, he intentionally chose not to penalize them "so he could 

sleep at night." Jones appeared in court and knowingly and voluntarily waived 

his right to counsel. He presented no evidence in his defense at trial, and the 

jury found him guilty. The jury fixed his punishment at the statutory-minimum 

five years' imprisonment.' 

1Anderson never appeared for trial; a warrant was issued but her charges were 

dismissed without prejudice following Jones's conviction. 

3 
Jones filed two post-trial motions with the trial court seeking a new trial 

and, alternatively, seeking to probate his sentence. The trial court denied a new 

trial but agreed to probate his sentence. He was accordingly sentenced to the 

minimal five-year sentence, probated for five years. Jones then appealed the 

judgment to the Kentucky Court of Appeals, contending that he was entitled to 

a directed verdict. The panel majority agreed and reversed his conviction, 

concluding that there was insufficient evidence to prove he and his 

conspirators collaborated under the "continuing basis" necessary to sustain an 

organized-crime conviction. 

We granted discretionary review to determine whether the 

Commonwealth presented sufficient evidence for a jury to conclude beyond a 

reasonable doubt that Jones engaged in a continuing criminal operation. 

Reviewing the plain meaning of the statute's text, today we hold that Jones was 

not entitled to a directed verdict. We accordingly reverse the Court of Appeals' 

decision and reinstate the trial court's judgment. 

II. ANALYSIS. 

A. Standard of Review 

For its first and only claim of error, the Commonwealth insists Jones was 

not entitled to a directed verdict because the Commonwealth sufficiently proved 

he was leading a continued criminal collaboration. At the close of the 

Commonwealth's evidence, Jones moved the trial court for directed verdict on 

the ground that he had not committed a crime. The trial court denied his 

motion. To be sure, the Due Process Clause of the Fourteenth Amendment 

certainly "protects the accused against conviction except upon proof beyond a 
reasonable doubt of every fact necessary to constitute the crime with which he 

is charged." 2Our standard of review for denial of a directed verdict is whether, 

under the evidence as a whole, it would be clearly unreasonable for the jury to 

find Jones guilty. 3We construe all evidence below in a light most favorable to 

the Commonwealth. 4 

B. Jones was not Entitled to a Directed Verdict. 

The Kentucky Penal Code offers a broad description of precisely what 

activity is subject to criminal liability for participation in organized crime. 

Kentucky Revised Statutes (KRS) 506.120 establishes nine classes of activities 

for which a "person, with the purpose to establish or maintain a criminal 

syndicate or to facilitate any of its activities" may be subject to prosecution. 5Of 

these nine activities, six are potentially applicable to this case: 

1. Organize or participate in a criminal syndicate or any of 

its activities. 6 

2. Provide material aid to a criminal syndicate or any of its 

activities, whether such aid is in the form of money or 

other property, or credit.' 

3. Manage, supervise, or direct any of the activities of a 

criminal syndicate, at any level of responsibility. 8 

4. Commit, or conspire or attempt to commit, or act as an 

accomplice in the commission of, any offense of a type in 

which a criminal syndicate engages on a continuing 

basis. 9 

5. Commit, or conspire or attempt to commit, or act as an 

accomplice in the commission of more than one (1) theft 

2 In re Winship, 397 U.S. 358, 364 (1970). 

3 See Commonwealth v. Fletcher, 59 S.W.3d 920, 921 (Ky. 2001). 

4 See Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 1991). 

5KRS 506.120(1). 

6KRS 506.120(1)(a). 

7KRS 506.120(1)(b). 

8KRS 506.120(1)(c). 

9KRS 506.120(1)(e). 

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of retail merchandise with intent to resell the 

merchandise.'° 

6. Acquire stolen retail merchandise for the purpose of 

reselling it where the person knew or should have known 

that the merchandise had been stolen.il 

Specifically, Jones was indicted for "managing, supervising and/or 

directing numerous other individuals to acquire retail merchandise including 

cell phones, by deception and/or fraud, with the intent to resell it." The 

indictment most closely resembles the retail-merchandise-theft component of 

the statute, though it also appears to incorporate Jones's culpability as the 

leader and organizer of the scheme. Instructions to the jury provide more 

clarity. It is unmistakable that the Commonwealth prosecuted Jones under a 

theory that he engaged in a criminal syndicate to commit retail-merchandise 

theft with the intent to resell the stolen merchandise. 

There is no doubt that Jones organized, managed, and participated in 

the scheme, he is the architect of the plan. But the most critical question in 

determining Jones's criminal liability is whether his plan may be properly 

labeled a "criminal syndicate." In fact, Jones denies any criminality in his 

actions; rather, he contends he simply took advantage of the laws and exploited 

a loophole, as any successful entrepreneur would. The statute offers 

tremendous assistance in this inquiry. A criminal syndicate is defined as either 

"five (5) or more persons, or, in cases of merchandise theft from a retail store for 

the purpose of reselling the stolen merchandise, two (2) or more persons, 

10KRS 506.120(1)(h). 

11KRS 506.120(1)(i). 

6 
collaborating to promote or engage" 12the commission of "any theft offense as 

defined by KRS Chapter 514." 13 

So in conducting our directed-verdict review, there are four elemental 

conclusions that based on the evidence presented at trial a reasonable jury 

must be able to reach beyond a reasonable doubt: (1) that a "theft" occurred in 

furtherance of Jones's scheme; (2) that two or more persons were involved; (3) 

that the persons collaborated in furtherance of the plan; and (4) that the 

scheme operated on a continuing basis. 

1. A theft occurred. 

The threshold issue we must address is whether sufficient evidence was 

presented at trial for the jury reasonably to conclude Jones's scheme was a 

"theft." Though the statute's definition of "criminal syndicate" includes any 

theft offense in KRS Chapter 514, the jury in this case was instructed on a 

theory that Jones and his minions acquired the cell phones by deception—an 

allegation Jones strongly denies. Instead, Jones suggests the phones were 

legally purchased and he bears no liability from the homeless mens' failures to 

perform on their two-year service contracts. 

Under Kentucky law, a person is guilty of theft by deception if "the 

person obtains property or services of another by deception with intent to 

deprive the person thereof." 14The statute further defines "deceive," in relevant 

part, as intentionally "creat[ing] or reinforce[ing] a false impression, including 

12 KRS 506.120(3)(emphasis added). 

13 KRS 506.120(3)(c). 

14 KRS 514.040(1). 
false impressions as to law, value, intention, or other state of mind." 15So 

under the Commonwealth's theory of the case, theft by deception occurred 

when Jones's homeless enlistees obtained the phones by signing a service 

contract they had no intention of honoring. The Commonwealth presented 

testimony from some of the homeless men verifying that they had no intention 

of complying with the terms of the various service contracts they signed. 

Jones rebuts the Commonwealth's theory primarily by denying that the 

phones were unlawfully obtained. He argues that they were legally purchased 

merchandise at the time of his arrest. The Commonwealth rebutted this 

allegation with testimony from cell-phone company employees explaining 

precisely how scams like Jones's affect their businesses. The employees 

explained to the jury that the companies subsidize part of the cost of the phone 

in exchange for a two-year service contract and the remaining cost of the phone 

is recouped over the course of payment. Individual sales operatives work for 

base pay plus commission. If someone cancels the service contract or does not 

pay during the first 90 days of service, the lost money is taken from the 

employee's paycheck. Moreover, employees testified that they believed that they 

may be sued for discrimination if they refuse to sell devices to suspiciouslooking people. So the testimony adequately informed the jury that by 

purchasing a phone and service contract with no intention to honor the 

contract Jones and his team "deprived" these businesses in an immediate and 

quantifiable manner. 

is KRS 514.040(1)(a). 

8 
But Jones counters this testimony in two ways. He first defends the 

legality of his activities by criticizing the phone companies' business models. To 

him, there was no deprivation of property from the companies—they only made 

a foolish business decision. Fortunately, Chapter 514 includes a robust 

definition of deprive as applied to theft-related offenses. Under the Kentucky 

Penal Code, deprive means either "No withhold property of another 

permanently or for so extended a period as to appropriate a major portion of its 

economic value or with intent to restore only upon payment of reward or other 

compensation," 16or to "dispose of the property so as to make it unlikely that 

the owner will ever recover it." 17To us, a reasonable jury could conclude that 

either definition could apply: Jones intended permanently to withhold the 

remaining portion of the subsidized cost of the phone. 

Second, Jones suggests that his plan narrowly invokes a loophole in the 

theft-by-deception statute. Specifically, he contends the provision declaring 

that "deception as to a person's intention to perform a promise shall not be 

inferred from the fact alone that he did not subsequently perform the promise" 

categorically exculpates any potential theft offense relating to the service 

contracts. But invoking this provision as a defense is logically fallacious; the 

provision only stands for the proposition that failure to pay alone is not enough 

to establish theft-by-deception. In the immediate case, the Commonwealth 

presented ample testimony from Jones's associates affirmatively establishing 

intent to deceive. Reliance on this provision as a complete defense is misplaced, 

and it is certainly not enough to entitle Jones to a directed verdict. 

16KRS 514.010(1)(a). 

17KRS 514.010(1)(b). 

9 
There was sufficient evidence for a reasonable jury to find a theft 

occurred. 

2. There were more than two participants. 

For our next inquiry, we must determine whether statutorily required 

number of participants was involved in this scheme to qualify as a criminal 

syndicate. As referenced above, the statute mandates either five or more 

participants, or, in the case of retail-merchandise theft, two or more 

participants.' 8The Commonwealth charged Jones on the latter qualification, 

and the instructions to the jury reflected that theory. In addition to Salena 

Anderson, the Commonwealth identified at least a dozen homeless 

participants. And some of them testified at trial. It is undisputed that the plan 

was executed by a cadre of homeless men. So we can conclude that a 

reasonable jury could find that the cell-phone scam was conducted by a group 

of two or more participants. 

3. The group collaborated in furtherance of the scheme. 

The next element to establishing the existence of a criminal syndicate is 

a requirement that participants "collaborated" to engage in theft by deception. 

We have previously held that proof of collaboration does not require a showing 

"that each participant in the criminal scheme collaborated with or was aware of 

the collaboration of the other participants." 19Similarly, "collaboration in the 

statute means simply collaborating in the scheme, and it is not necessary for 

the Commonwealth to show that each participant collaborating in the scheme 

collaborated with or even was aware of the collaboration of the other 

18 See KRS 506.120(3). 

19 Edmonds v. Commonwealth, 906 S.W.2d 343, 348 (Ky. 1995). 

10 
participants."20So to us, the collaborating element is satisfied if the 

Commonwealth can establish enough evidence of two or more participants with 

general knowledge of the scheme to acquire fraudulently the international cell 

phones. And we conclude the Commonwealth met this burden. 

First and foremost, evidence of Anderson's involvement should be 

enough to establish collaboration. From the facts presented in this case, it 

would appear that Jones and Anderson are co-architects; at the very least 

Anderson could be aptly described as an accomplice to Jones's plan with full 

knowledge of what they hoped to achieve. Under the loose understanding of 

collaboration that we have previously articulated, proof of Anderson's 

involvement should be sufficient to take the charge to the jury. Anderson was 

not prominently featured in the Commonwealth's proof, but her involvement 

was at least referenced throughout the trial. 

Even if we exclude Anderson from our calculus, the Commonwealth's 

evidence of the homeless participants' complicity in the plan meets the 

evidentiary burden as well. When Detective Duane received consent to search 

Jones's van, he found receipts for two-year service contracts in the name of a 

dozen different homeless men. And some of those men testified at Jones's trial 

about their roles in the scheme—that Jones would give them $20 for each 

phone they obtained by signing a service contract. This general understanding 

that Jones asked them to acquire a cell phone by creating a false impression is 

sufficient to us for a reasonable jury to determine two or more persons 

collaborated to effectuate Jones's theft-by-deception plan. 

20 Commonwealth v. Phillips, 655 S.W.2d 6, 9 (Ky. 1983). 

11 
4. The group collaborated on a continuing basis. 

The final and most contentious inquiry in determining whether Jones's 

plan can be characterized as a criminal syndicate is whether the plan was 

intended to operate on a continuing basis. The Court of Appeals majority, in 

reversing Jones's convictions, held that he was not guilty of operating a 

criminal syndicate because there was insufficient evidence that he collaborated 

on a continuing basis with the participants testifying at trial. The panel 

majority's ruling misstates our prior interpretations of the statute's command. 

In support of its decision reversing Jones's conviction, the Court of 

Appeals majority relied on our recent holding in Parker v. Commonwealth. 21 

And to be sure, we vigorously interpreted Kentucky's organized-crime statute in 

its most paradigmatic application—gang-related violence and drug trafficking. 

In Parker, we reversed a criminal defendant's criminal syndicate conviction 

because the Commonwealth provided insufficient evidence to prove he 

collaborated with four or more persons 22on a continuing basis dealing drugs 

as part of his association with the Crips gang. But there are critical 

discrepancies in the present case that are distinct from Parker. 

In Parker, we held that there was insufficient evidence of a continuing 

basis because the Commonwealth's case centered on a "singular drug deal that 

resulted in Barnes' death." 23The Court of Appeals majority reached a similar 

result in this case, taking issue that most of the Commonwealth's evidence 

21291 S.W.3d 647 (Ky. 2009). 

22 Id. Because Parker was not indicted under a merchandise-theft theory, his 

case was reviewed under the standard criminal-syndicate definition. So the 

Commonwealth needed to prove five or more collaborators, rather than merely two or 

more necessary for guilt in Jones's case. 

23/d. at 675. 

12 
zeroed-in on Jones's activity on one particular day. But in Parker, we also 

reaffirmed that "[t]he Commonwealth is not held to proving any specific 

number of incidents or any element of time, but must show by the proof what 

the jury could infer from the evidence as intent to collaborate on a continuing 

basis."24Unlike Parker, where the evidence focused on one drug deal, the 

Commonwealth in this case presented evidence of multiple purchases in a 

single day, repeated criminal acts. Some homeless participants testified to 

going to multiple stores in one day. And Jones made multiple trips to Lexington 

to effectuate his plan. The Commonwealth did enough to ensure the jury knew 

of far more than one instance in furtherance of the scheme, which Parker 

strongly condemns as insufficient proof of a continuing basis. 

We also refused to find a continuous collaboration in Parker because one 

witness testified that "every man did their own thing." 25Though the 

Commonwealth in Parker pursued a criminal-syndicate theory premised on 

drug trafficking, witness testimony stated that "the Crips made their own deals 

and sold their own drugs. "26But such autonomy is unquestionably lacking in 

this case. Though it is true each participant went into each store alone and 

signed every contract individually, it is equally true he did so at Jones's behest. 

Jones drove all of the men to each store, directed which store to enter, told 

them which phone and plan to purchase, and compensated each man that 

successfully returned with the international smartphone. It is clear from the 

24 Id. (quoting Phillips, 655 S.W.2d at 9.). 

25 Id. at 676. 

26 Id. 

13 
Commonwealth's proof that each participant in Jones's scheme did not, in 

contrast to Parker, "do their own thing." 

And finally, as part of its continuing-basis analysis, the Court of Appeals 

spent considerable time discussing whether Jones intended to continue his 

scheme into the future. But this is an unnecessary inquiry. 27Even if we 

willingly suspend disbelief that Jones did not know he was perpetuating theft 

and that after learning of the unlawful nature of his operation he would 

abandon his business, there remains ample evidence that he was conducting 

this collaboration on a continuing basis at the time of his arrest. At minimum, 

the Commonwealth presented enough evidence to allow reasonable jurors to 

decide for themselves. 

5. Jones intended to form a criminal syndicate. 

Much of the difficulty in this case is derived from the unconventional 

nature of this factual application to Kentucky's organized-crime statute. But as 

a reviewing body interpreting a statute, it is our duty to give effect to the plain 

meaning of the statute's text. And "a person's mistaken belief that his conduct, 

as a matter of law, does not constitute an offense does not relieve him of 

criminal liability." 28So it is immaterial to our analysis whether Jones 

subjectively knew he was forming a criminal syndicate. The sole guiding factor 

is whether the Commonwealth produced enough evidence to show that the text 

encompasses his actions. And we hold the Commonwealth met this burden. 

27 See Hill v. Commonwealth, 125 S.W.3d 221, 231 (Ky. 2004) (evidence that a 

criminal scheme to smuggle marijuana into prison lasted for two to five months was 

sufficient to support finding a criminal syndicate operating on a "continuing basis" 

despite testimony that a participant planned to "get out"). 

28KRS 501.070(3). 

14 
We have no doubt that Jones is no Mafioso. But the text crafted by the 

legislature and 'signed into law by the governor covers more than the gangland 

imagery synonymous with organized crime. The statute plainly criminalizes 

organized efforts to engage in merchandise theft. And Jones created such an 

organization whether he subjectively classified it as criminal or not. 

III. CONCLUSION. 

For the foregoing reasons, we reverse the Court of Appeals' decision and 

reinstate the trial court's judgment. 

All sitting. All concur. 

COUNSEL FOR APPELLANT: 

Andy Beshear 

Attorney General of Kentucky 

Christian Kenneth Ray Miller 

Assistant Attorney General of Kentucky 

COUNSEL FOR APPELLEE: 

Willie Edward Peale Jr. 

Peale Law Office 

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