State v. Burnett

• Decision Date: 29 February 1980
• Docket Number: No. 51107,51107
• Parties: STATE of Kansas, Appellee, v. Gerald D. BURNETT, Appellant.
• Court: Kansas Court of Appeals

Page 88

607 P.2d 88

4 Kan.App.2d 412

STATE of Kansas, Appellee, v. Gerald D. BURNETT, Appellant.

No. 51107.

Court of Appeals of Kansas.

Feb. 29, 1980.

Syllabus by the Court

1. An intent to deprive the owner permanently of possession, use or benefit of property is an essential element to prove theft pursuant to K.S.A.1979 Supp. 21-3701.

2. An intent to deprive the owner of temporary use of property without the intent to deprive the owner of permanent possession, use or benefit of the property is an essential element for a conviction of unlawful deprivation of property under K.S.A. 21-3705.

3. The trial judge has a duty to instruct the jury not only as to the crime charged but also to all lesser included crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even if these instructions have not been requested or objected to. K.S.A. 21-3107(3).

4. Under the facts of this case it is held that unlawful deprivation of property is not a lesser included offense of theft and the trial court did not err in failing to instruct the jury under K.S.A. 21-3705.

Lawrence P. Ireland of Ireland & Enright, Topeka, for appellant.

J. Richard Lake, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before PARKS, P. J., and ABBOTT and SWINEHART, JJ.

SWINEHART, Judge:

Defendant Gerald D. Burnett appeals from a conviction by a jury of six counts of felony theft in violation of K.S.A.1979 Supp. 21-3701. (Count 6 was based upon the prior theft statute which made theft of property of a value of $50 or more a class D felony, because it was committed prior to the 1978 amendments.) Defendant alleges on appeal that the trial court erred in failing to instruct the jury on the offense of unlawful deprivation of property, pursuant to K.S.A. 21-3705.

Defendant Gerald Burnett was employed as assistant manager of Auto Parts of Holton, Inc., in Holton, in September, 1977, and on April 30, 1978, was promoted to manager. As store manager he was to prepare and mail to the NAPA corporate headquarters in Topeka an envelope on a regular basis, i. e., daily or every few days, containing cash sales tickets, charge tickets, a copy of bank deposit slips representing the total cash and check transactions for the period, and an accounts receivable list. He then deposited the proceeds of the business in the Kansas State Bank at Holton. The manager also had the discretion to delegate these tasks to the assistant manager.

In July of 1978, the Kansas State Bank at Holton informed the Topeka office of an overdraft in its account at the bank. Robert Acker, the store coordinator for the NAPA stores in the area, consulted with the company accountant and investigated the matter. He determined that the following five deposits, for which he had received deposit slips, had not been made at the bank: July 5, covering business on July 2, 3, and 5; July 6; July 8, covering July 7 and 8; July 15, covering July 13, 14 and 15; and July 17, covering July 16 and 17, all in 1978. The deposits totalled $4,237.78. The bank records failed to show receipt of any of these deposits. Although the assistant manager recalled filling out the envelopes for several of these dates, he stated he did not complete any of the deposit slips nor did he recall making any of the deposits. He was out of town when the last two slips were completed.

The defendant testified that he had completed four of the deposit slips, while Mr. Acker stated that all of them were in the defendant's handwriting. The defendant could not remember whether he had actually made any of the alleged deposits at the bank, but denied taking any funds from the store. He did admit, however, that the original deposit slip for July 6, 1978, had been found in his trailer, although no money was discovered with it. He also could not recall whether he or his wife had moved the deposit slip from his car to the trailer.

The defendant was charged and convicted by a jury on five counts of willfully and intentionally exerting unauthorized control over these deposits, with intent to permanently deprive the owner thereof, pursuant to K.S.A.1979 Supp. 21-3701.

Defendant also was convicted on a sixth count in violation of K.S.A. 21-3701, which arose from the sale of a four-cylinder Vega C253 Four Star engine to Robert Arnold. Arnold gave the defendant checks in the amount of $300 and $42.64 in payment of the engine. The last check was dated July 17, 1978. The payee line on both checks was left blank by Arnold. The defendant later inserted his name as payee and endorsed the checks in his name. The defendant claimed he made the sale on his own company discount and charged it to his account, intending to pay for it when due. He made a "hold ticket" which Acker had seen one day while working at the store, but Acker stated that this was an unauthorized procedure for making a charge and against company policy. Further, Acker testified that the Topeka headquarters never received a charge ticket on the defendant's charge account for the engine, nor did defendant ever pay for the engine in question whereas the defendant stated he had put the engine on his account. Although he had not yet paid for the engine, defendant testified he intended to do so.

Defendant contends that unlawful deprivation of property, as provided in K.S.A. 21-3705, is a lesser included offense of theft, as defined in K.S.A. 1979 Supp. 21-3701. Therefore, the defendant urges that the trial court erred by failing to instruct the jury on the lesser included offense of unlawful deprivation of property. The State disagrees with this contention. Even if unlawful deprivation of property is a lesser included offense of theft, the State asserts the trial court did not err in refusing to instruct thereon because there was no evidence in the record to warrant such an instruction.

The following are the most relevant statutes. K.S.A. 21-3107(2) and (3) provide:

"(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: (a ) A lesser degree of the same crime;

"(b ) An attempt to commit the crime charged;

"(c ) An attempt to commit a lesser degree of the crime charged; or

"(d ) A crime necessarily proved if the crime charged were proved.

"(3) In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to."

K.S.A. 21-3107(2)(d ) is the pertinent category on this appeal to consider defendant's contention that a violation of K.S.A. 21-3705 is a lesser included offense of K.S.A.1979 Supp. 21-3701.

K.S.A.1979 Supp. 21-3701, the general theft statute, provides:

"Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property:

"(a ) Obtaining or exerting unauthorized control over property; or

"Theft of property of the value of one hundred dollars ($100) or more is a class D felony. Theft of property of the value of less than one hundred dollars ($100) is a class A misdemeanor."

K.S.A. 21-3705 provides:

"Unlawful deprivation of property is obtaining or exerting unauthorized control over property, with intent to deprive the owner of the temporary use thereof, without the owner's consent but not with the intent of depriving the owner permanently of the possession, use or benefit of his property.

"Unlawful deprivation of property is a class A misdemeanor."

The Judicial Council note following K.S.A. 21-3705 states that it is based upon the former "joyriding" statute, K.S.A. 21-544, and has been expanded to cover all classes of property.

Both parties agree that under statute and case law, in a criminal case the trial court has the duty to instruct the jury as to all lesser offenses upon which an accused might be found guilty under the information and the evidence presented at trial, as well as the duty to instruct as to the offense charged. Such a duty is imposed even if such instructions have not been requested or have met with objection. K.S.A. 21-3107(3); State v. Boyd, 216 Kan. 373, 376, 532 P.2d 1064 (1975); State v. Clark, 214 Kan. 293, 521 P.2d 298 (1974); State v. Warbritton, 211 Kan. 506, 506 P.2d 1152 (1973); State v. Satterfield, 3 Kan.App.2d 212, 592 P.2d 135, rev. denied (June 13, 1979). In this action the defendant did not request any instructions on lesser included offenses and none were given.

This court must determine whether or not unlawful deprivation of property is a lesser included offense of theft. K.S.A. 21- 3107(2) sets forth four types of included crimes. Additionally, in State v. Daniels, 223 Kan. 266, 270, 573 P.2d 607, 610 (1977), the court noted the following test had been repeatedly used to determine what constitutes a lesser included offense under K.S.A. 21-3107(2)(d ):

" 'A lesser offense is considered a lesser included offense under K.S.A. 21-3107(2)(d ) when all elements necessary to prove the lesser offense must be present to establish the elements of the greater offense.' (Wisner v. State, 216 Kan. 523, Syl. P 2, 532 P.2d 1051 (1975).)

"Under this test, if the lesser offense requires proof of an element not necessary in the greater, the court should not instruct the jury that the defendant can be found guilty of the lesser offense."

A greater offense may not be committed without having first committed the lesser offense to satisfy K.S.A. 21-3107(2)(d ), as an "identity of elements" is required. An offense factually charged in the information and established by the evidence is not sufficient to require a lesser included offense instruction. Rather, the inquiry...