State v. Laborde
| Decision Date | 06 November 2015 |
| Docket Number | No. 107,872.,107,872. |
| Citation | 360 P.3d 1080 |
| Parties | STATE of Kansas, Appellee, v. Jodie LABORDE, Appellant. |
| Court | Kansas Supreme Court |
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Richard E. James, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellee.
The opinion of the court was delivered by PER CURIAM:
In this peculiar case, the State brought charges against the defendant asserting elements under one statutory theory of theft, but the jury convicted the defendant under instructions setting out a different theory of theft. The Court of Appeals found that the conviction was the result of error invited by both parties and affirmed on that basis. We conclude, however, that the parties never raised on appeal the discrepancy between the charge and the instruction and the case must be analyzed on the terms that the parties argued it, as a matter solely of sufficiency of the evidence. Considered from that perspective, we disagree with the conclusion that the Court of Appeals reached and reverse.
The evidence produced at trial shows that Staff Sergeant Harry Price III lived for approximately 2 months with the defendant Jodie Laborde on a farm in Clay County, Kansas. They had been in a relationship for about a year, and he planned on marrying her. Price kept personal items at the farm, including gear issued to him by the United States Army.
On October 3, 2010, Price and Laborde had a falling out after an altercation between his daughter and Laborde. Laborde called for police intervention, and a couple of officers arrived at the scene. Price informed them that he was leaving anyway for a legal proceeding in West Virginia, and he left the premises, taking with him tools and four small file boxes that were in his truck.
Price then called one of the officers and asked for permission to return to the farm to retrieve his dress uniform and other military gear. The officer went into the house and brought back a paper bag full of civilian clothing that Laborde provided. Laborde did not give him the dress uniform, however; she instead informed the officer that the dress uniform and other gear were in a storage shed in Abilene. Price then left for West Virginia, not returning until a week later.
Meanwhile, on October 5, 2010, Barb Heller, who moderated a military-family support group on the Internet, responded to Laborde's report that she was the victim of abuse. She traveled to Kansas from Arizona to meet Laborde and help her with household chores. While straightening up a closet, Heller discovered Price's dress uniform on the floor. When Heller inquired why the uniform was in the house, Laborde started to shout at her and accused her of going through her closets and belongings.
Upon his return from West Virginia, Price went to the farm on October 17 for the purpose of recovering his military gear, much of which had been issued in anticipation of deployment to Iraq. An officer escorting him told him he could not go onto the property, and Laborde informed the police escort that Price already had the materials he was seeking.
On November 2, Price called law enforcement and asked for assistance in going onto the farm to retrieve his property. Two officers accompanied him to the farm to keep the parties apart while the officers recovered the gear necessary for his deployment. Price waited while a deputy asked Laborde about his military gear. She told the deputy that she had taken the gear to Price's place of work. Price had already checked with his post, however, and verified that no one had brought any gear. When Price informed the deputy that he had checked with his post, Laborde then stated that she had taken the gear to a barracks where he had once been stationed. Price had already checked the barracks and determined that nothing had been turned in at that location either. Laborde then said that the gear was in storage.
Laborde initially told the police that they could not come onto the farm, and she claimed that she had sole control of the farm. She eventually relented and gave the police permission to look through the house and sheds. They found a bag of military gear, but name tags showed that it belonged to other soldiers, not Price, and Laborde told the officers that another soldier had started living at the farm.
Another deputy talked with Laborde and accompanied her back to the house. He persuaded her to allow Price to take his Harley Davidson motorcycle away from the farm. The police escort did not look for Price's other property, and again Laborde stated that Price already had constructive possession of all of the military gear, either at his barracks or in storage.
Not long afterwards, soon after Thanksgiving and shortly before service-family advocate Heller left Kansas, she had a conversation with Laborde about how her new romantic relationship was going. She asked if things were going well enough that Laborde could give Price his materials back. Laborde responded that she had sold his possessions at a garage sale.
Price subsequently obtained judicial leave to enter the farm to retrieve his property. On December 8, accompanied by a deputy, he walked through the farm. Laborde informed the police escort that she had taken Price's property to the base. Price nevertheless was able to locate about half of the missing military gear, but he never was able to locate about $4,615.50 worth of military property, including such items as coats, sleeping bags, hats, safety glasses, night-vision goggles, a first-aid kit, and shirts. When asked to explain how Price was able to find some of his military gear on the premises after she said that it was all gone, Laborde accused Price of sneaking onto the property and hiding the gear in a locked shed.
Around Christmas, service-family advocate Heller sent Laborde a text-message again inquiring about the status of Price's military gear. Laborde replied with a text-message reading: Laborde testified at trial that her message referred only to those items that Price left after his December 8 walk-through, and she further testified that police had given her permission to sell those items. Earlier, however, Laborde had denied sending the text and had accused Price's daughter of sending the text on her phone without her permission. Laborde continued to deny disposing of any military property.
Army Sergeant Luke McGuire was assigned to investigate Price's failure to return military property that was in his custody. McGuire testified that Price, despite having direct responsibility for the equipment, was not liable for its loss because he was not allowed back on the premises and had made reasonable attempts to retrieve it. During the course of his investigation, McGuire left messages for Laborde to call him back, but she never returned the calls. McGuire also checked with Price's unit headquarters and company buildings to determine whether the missing property had been turned in, which it had not.
On January 11, 2011, the State filed a complaint charging Laborde with one count of felony theft by deception under K.S.A. 21–3701(a)(2). On April 29, 2011, the State filed an information, again charging Laborde with theft by deception. Finally, on December 1, 2011, at the beginning of the jury trial, the State filed an amended information, repeating the K.S.A. 21–3701(a)(2)theft by deception charge but changing the owner of the property from Price to the United States Army.
Both parties submitted instructions to the court setting out the elements of theft by unauthorized control. The jury found Laborde guilty of felony theft, and the district court sentenced her to a guideline term of 7 months and ordered her to pay restitution. The Court of Appeals affirmed the conviction in State v. Laborde,No. 107,872, ––– Kan.App.2d ––––, 2013 WL 2395452 (Kan.App.2013)(unpublished opinion). This court granted Laborde's petition for review.
The parties have focused their arguments on whether the evidence educed at the trial sufficed to sustain a conviction for theft by deception. The Court of Appeals commented that Laborde was correct in her assertion that the State failed to present sufficient evidence to convict her of theft by deception. The parties reiterated these arguments before this court on review. At oral argument, Laborde insisted that the State was precluded from even addressing the sufficiency of the evidence question because it neglected to file a cross-petition for review.
We note that the State is not only not required to cross-petition in an appeal in which it prevailed in the Court of Appeals, it is precluded from doing so. Supreme Court Rule 8.03(a)(4)(C)(2014 Kan. Ct. R. Annot. 77), addresses a situation in which the Court of Appeals reversesa criminal conviction. In such an instance, logically, the State is required to file a petition for review in order to obtain review of an issue. In the present case, however, the Court of Appeals affirmed the conviction.
Laborde faults the State for failing to do what we have explicitly told the State that it is not permitted to do. This court has explicitly held that the State is not permitted to petition for review from an issue that it won in the Court of Appeals, even if it disagreed with the rationale:
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...that a rational factfinder could have found the defendant guilty beyond a reasonable doubt based on that evidence. State v. Laborde , 303 Kan. 1, 6, 360 P.3d 1080 (2015). Taylor contends that the trafficking in contraband statute is unconstitutional as applied to him because he was "not pro......
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