State v. Dressel, 56940

• Decision Date: 12 June 1987
• Docket Number: No. 56940,56940
• Citation: 738 P.2d 830,241 Kan. 426
• Parties: STATE of Kansas, Appellee, v. Elmo Dean DRESSEL, Sam McHugh Webb, and Robert Willis Strickland, Jr., Appellants.
• Court: Kansas Supreme Court

Page 830

738 P.2d 830

241 Kan. 426

STATE of Kansas, Appellee, v. Elmo Dean DRESSEL, Sam McHugh Webb, and Robert Willis

Strickland, Jr., Appellants.

No. 56940.

Supreme Court of Kansas.

June 12, 1987.

Syllabus by the Court

1. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

2. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of a charge are sustained.

3. An attorney hired by the prosecuting witness to assist the prosecutor must participate in discovery pursuant to K.S.A. 22-3212 by disclosing requested evidence which is in the attorney's possession, custody, or control.

4. A lawyer who is retained under K.S.A. 19-717 to assist the public prosecutor is obligated under DR 7-103 (235 Kan. cxlviii) to disclose evidence known to him or her which would tend to negate guilt, mitigate the degree of the offense, or reduce the punishment.

5. A trial court has no authority to compel discovery from the complaining witness pursuant to K.S.A. 22-3212.

6. No rule governing oral argument is more fundamental than that requiring counsel to confine their remarks to matters in evidence.

Charles A. O'Hara, of O'Hara, O'Hara & Tousley, Wichita, argued the cause and was on the brief, for appellant Elmo D. Dressel.

Daniel H. Phillips, of Lyon & Phillips, Wichita, argued the cause and was on the brief, for appellant Sam McHugh Webb.

Roger L. Falk, Matlack & Foote, P.A., Wichita, argued the cause and was on the brief, for appellant Robert Willis Strickland, Jr.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Clark V. Owens, Dist. Atty., and Neal B. Brady and Debra Barnett, Asst. Dist. Attys., were on the briefs, for appellee.

MILLER, Justice:

The defendants, Elmo Dean Dressel, Sam McHugh Webb, and Robert Willis Strickland, Jr., were each convicted of one count of attempted felony theft, K.S.A. 21-3301 and K.S.A. 21-3701, and six counts of felony theft, K.S.A. 21-3701, following a nine-week jury trial. They appealed, and the Court of Appeals reversed the convictions. State v. Dressel, 11 Kan.App.2d 552, 729 P.2d 1245 (1986). We granted the State's petition for review on February 27, 1987.

The charges arose from activities at Cargill's soybean receiving and processing plant in Wichita, Kansas. Webb, a truck driver, purported to deliver and unload soybeans at that plant. Payment for the soybeans was made by check, mailed to Webb's employer, the F & M Grain Company of Commerce City, Colorado. Dressel was a part owner of F & M and active in its operation. Defendant Strickland was employed by Cargill at the Wichita facility. His job was to weigh delivery trucks before and after unloading, a process which produces the measurements from which net delivery weight and payment are calculated. The State contended that Webb did not unload his cargo; Strickland managed to manipulate the scales to show large deliveries which were not made; and Cargill was thus defrauded when it paid for soybeans it did not receive.

All of the defendants challenge the sufficiency of the evidence to support the convictions. The standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of a charge are sustained. State v. Bird, 240 Kan. 288, 298-99, 729 P.2d 1136 (1986).

We have carefully reviewed the record and find the statement of the facts, as contained in the opinion of the Court of Appeals, is correct. We quote from that opinion:

"Cargill, Incorporated (Cargill) is an agribusiness conglomerate with principal offices in Minneapolis, Minnesota. Cargill operates a soybean receiving and processing plant in Wichita, Kansas. The first step in this business is that of acquiring soybeans for processing. These beans are delivered to the plant by trucks.

"The delivering truck pulls onto a scale called a gross weight scale and the scale operator pushes a button which weighs and then stores the truck's gross weight in a computer's memory. This computer is capable of storing two gross weights at the same time. The truck then drives to the unload or pit area where the soybeans are dumped and elevated into storage for future use. At the same time, a sample is taken for grading purposes.

"The delivering truck, now empty, proceeds to another scale, the tare scale. The scale operator pushes the tare weight button, which causes an 'in-truck scale ticket' to be printed. This ticket has printed on it the truck's gross weight and its tare weight, as well as the time and date of the tare reading. Also printed is the automatically calculated net weight of the delivery transaction. This scale ticket is used as the receipt evidencing the delivery of the beans and represents an obligation of payment on the part of Cargill.

"As the scale ticket printer prints the in-truck scale ticket, it simultaneously records the identical information on a 'continual roll tape.' This produces a daily cumulative record of all transactions on the scales reflecting the weights and times the tare weights were recorded.

"The scale operation is capable of handling two trucks within the stages of unloading. While one truck is at the unloading pit, a second truck can be on the gross scale. When there are two gross weights in the memory, it is the first one that is to be recorded when the tare weight button is pushed. The scale ticket printer will print a given tare weight as often as the operator engages the printer mechanism and a gross weight is available in memory to produce a new weight computation. The recording and printing of the various weights in the proper sequence is necessary to produce true results and this function is under the total control of the scale operator.

"As a security precaution, both the gross and tare scales are monitored by two closed-circuit video cameras. One camera tapes the view of the gross scale and the other of the tare scale with a distant view of the unload pit. Their signals are fed to two video monitors and two time-lapse video recorders. The recorders also reflect a time and date for each frame recorded.

"In late April and early May 1983, David Larson, an accountant at the Wichita facility, had an opportunity to view several of these videotapes. Since he observed some unusual activity, several Cargill employees from Minneapolis came to Wichita on May 10 to view the tapes.

"Review of the tapes, in conjunction with an analysis of unloading documents, disclosed several discrepancies in the unloads made by a particular F & M Grain Company (F & M) truck between April 25, 1983, and May 12, 1983. First, the F & M truck consistently veered sharply to the right as it came out of the unload shed onto the tare scale. Second, the tare weight of the F & M truck was 'punched in' within one or two minutes of when the previous truck received its tare weight. Third, the tare weight of the F & M truck was consistently similar to the tare weight of the truck immediately preceding it. Fourth, the driver of the F & M truck did not get out of his vehicle while it was stopped on the tare scale. Fifth, the F & M truck, which was supposedly coming from Commerce City, Colorado, made frequent unloads at the plant, often two unloads per day. Sixth, the license tag on the F & M truck varied, depending on whether the truck was making a morning or afternoon unload. Finally, the tarp on the F & M truck did not move while the truck was in the unloading pit.

"On May 12, 1983, several Cargill employees set up surveillance to watch the F & M truck. David Larson observed that the truck, driven by defendant Sam McHugh Webb, was improperly positioned over the unload pit and that the truck moved slowly onto the tare scale. In addition, Larson noted that after the truck cleared the area, it was traveling in low gear emitting black smoke and 'hugged' the road. Larson concluded that the F & M truck had not unloaded any soybeans.

"Ted F. Neises, Jr., who was near the F & M truck, also concluded that the truck had not made a delivery since he did not see or hear any soybeans being unloaded. Defendant Robert Willis Strickland, Jr., was the Cargill scale operator at the time of this delivery.

"On May 13, 1983, Cargill employees contacted the Kansas Bureau of Investigation. Several special agents, assisted by Cargill employees, conducted an investigation concerning the activities of the F & M truck. On May 17, 1983, David Larson and KBI special agent Ed Bartkoski observed the F & M truck parked in the parking lot of a west Wichita motel. Later that day, they saw Webb and the third defendant, Elmo Dean Dressel, leave the motel in a brown pickup truck. Webb drove the pickup to the Cargill plant and circled the parking lot twice. Strickland was not working the scales on this date.

"On May 18, 1983, Larson and Bartkoski observed the F & M truck, driven by Webb, make a bona fide unload. While making this unload, the truck was in the unload pit for approximately two minutes. Following the delivery, Webb returned to the motel where he was met by Dressel. They had been staying in the same motel room. Subsequent testing by the state grain inspection department revealed that the soybeans delivered were sour, a condition created by damp storage and the lack of proper air circulation. The videotape of this transaction was recorded over on June 6, 1983. This tape was never in the possession of the KBI and it was the policy of Cargill to keep the tapes for 90 days.

"On April 26, 28, 29...