State v. Palmer

• Citation: 248 Kan. 681,810 P.2d 734
• Decision Date: 17 April 1991
• Docket Number: 64876,Nos. 64875,s. 64875
• Parties: STATE of Kansas, Appellant, v. John E. PALMER, Elliot M. Kaplan, and David C. Owen, Appellees.
• Court: United States State Supreme Court of Kansas

Page 734

810 P.2d 734

248 Kan. 681

STATE of Kansas, Appellant, v. John E. PALMER, Elliot M. Kaplan, and David C. Owen, Appellees.

Nos. 64875, 64876.

Supreme Court of Kansas.

April 17, 1991.

Syllabus by the Court

1. All criminal offenses, except those considered continuing offenses, are committed when every act which is an element of the offense has occurred. Continuing offenses are committed when the course of the prohibited conduct, or the accused's complicity in the crime, has terminated. To constitute a continuing offense, it must plainly appear in the statute defining such offense that there is a clear legislative intent to make the prohibited conduct a continuing offense.

2. Neither theft nor conspiracy to commit theft was intended by the legislature to be a continuing offense.

3. To constitute concealment of the fact of the crime of theft sufficient to toll the statute of limitations there must be a positive act done by or on behalf of the accused calculated to prevent discovery of the theft by those owning or having possession 4. To commit the crime of making a false writing one must have the intent to defraud or induce official action pursuant to K.S.A. 21-3711. The knowing delivery of a false document to the official who is intended to be induced to act is a type of participation that indicates an intent by the person making the delivery to further the success of the person making the false writing.

of the property prior to the theft. Mere silence, inaction, nondisclosure, or disposal of the stolen property is not concealment of the fact of the crime as contemplated in K.S.A. 21-3106.

5. Under the facts presented, the question of concealment of illegal campaign contributions is a matter of fact for the jury to determine.

Michael A. Barbara, Sp. Asst. Atty. Gen., Topeka, argued the cause, and Thomas D. Haney, Sp. Asst. Atty. Gen., Topeka, and Robert T. Stephan, Atty. Gen., were with him on the briefs, for appellant.

Bruce C. Houdek, James, Millert, Houdek, Tyrl & Sommers, Kansas City, Mo., argued the cause and was on the brief, for appellee John E. Palmer.

Elliott M. Kaplan, pro se.

Ellen Yankiver Suni, UMKC School of Law, Kansas City, Mo., argued the cause, and William R. Coffee, Olathe, were with her on the brief, for appellee Elliot M. Kaplan.

James L. Eisenbrandt, Linde Thomson Langworthy Kohn & Van Dyke, P.C., Overland Park, argued the cause, and Barbara W. Foster, of the same firm, was with him on the brief, for appellee David C. Owen.

LOCKETT, Justice:

An inquisition conducted by the Kansas Attorney General's specially appointed prosecutors pursuant to K.S.A. 22-3101 et seq. to investigate alleged violations of the Campaign Finance Act, K.S.A. 25-4142 et seq. resulted in separate criminal complaints being filed against defendants David C. Owen, Elliot M. Kaplan, and John E. Palmer. Owen was charged with seven felony counts in case K-61870: four counts of theft, one count of conspiracy to commit theft, one count of making a false writing, and one count of criminal solicitation. In addition, he was charged with 11 misdemeanor counts: one count of making excessive campaign contributions, one count of conspiracy with Palmer to make an excessive campaign contribution; and nine counts of making a campaign contribution in the name of another. Kaplan was charged with two felony counts in case K-61869: one count of theft and one count of conspiracy to commit theft. Palmer was charged in case K-61871 with one misdemeanor count of conspiracy with Owen to make excessive campaign contributions. A motion to consolidate cases K-61869 and K-61870 was granted November 27, 1989.

A preliminary examination was scheduled to determine whether there was cause to bind over Owen and Kaplan on the felony charges. Prior to Owen's and Kaplan's preliminary examination, the parties stipulated that if the district judge found that the statute of limitations barred prosecution of the felony charges, prosecution of the misdemeanor charges against Owen and Palmer would also be barred. Because of the agreement to include the misdemeanor charges, after the evidence had been submitted, the State also argued facts alleged in the affidavit for the warrant on the misdemeanor charges.

After the State had presented its evidence in the preliminary examination the district judge (1) found there was no evidence the alleged felonies had been committed; (2) held the prosecution of the felonies and the misdemeanors alleged in the complaints was barred by the statute of limitations, K.S.A. 21-3106(3); and (3) dismissed the complaints against the defendants. The State appealed pursuant to K.S.A. 22-3602(b)(1).

STATUTE OF LIMITATIONS

K.S.A. 21-3106(3) requires that prosecution of the offenses alleged against the three defendants must be commenced within two years after the alleged offenses

were committed. The State alleged that the illegal acts occurred between September 16, 1986, and December 29, 1986. The criminal complaints against the defendants were filed on October 31, 1989, approximately three years after the alleged offenses occurred. The State admits that the charges were not commenced within the statutory two-year period but claims that the two-year limitation for prosecution was tolled by K.S.A. 21-3106(4)(c) because the defendants concealed the fact that a crime had been committed.

CONCEALMENT

Statutes of limitation are favored in the law and are to be construed liberally in favor of the accused and against the prosecutor. State v. Bentley, 239 Kan. 334, 336, 721 P.2d 227 (1986); State v. Mills, 238 Kan. 189, 190, 707 P.2d 1079 (1985). Exceptions to the statute are to be construed narrowly or strictly against the State. Bentley, 239 Kan. at 336, 721 P.2d 227; Mills, 238 Kan. at 190, 707 P.2d 1079.

"Unless the statute of limitations contains an exception or condition that will toll its operation, the running of the statute is not interrupted.... Under statutes so providing, there may be deducted from the period of limitation the time during which the accused ... conceals the fact of the crime. However, to suspend the operation of the statute the concealment of the fact of a crime must be the result of positive acts done by the accused and calculated to prevent discovery; mere silence, inaction, or nondisclosure is not concealment. [State v. Watson, 145 Kan. 792, 67 P.2d 515 (1937).] Thus, for example, a loan officer's failure to inform an investor in the lending business of a principal payment on a mortgage loan was more than mere silence and inaction, and his instruction to the company secretary to pay the regular amount of interest to the investor to cause him to believe the principal was still loaned out constituted an active step toward the concealment of the crime of embezzlement where the investor has previously expressed his desire not to leave any more money with the loan company." 21 Am.Jur.2d § 227.

K.S.A. 21-3106 sets out the various time limitations within which a prosecution must be commenced. The offenses alleged here by the State require the prosecution to begin within two years after they were committed. The period within which the prosecution must be commenced does not include any period during which the fact of the crime is concealed. K.S.A. 21-3106(3), (4)(c).

The State contends that the trial court erred in finding there was no concealment of the alleged crimes by the defendants. Before determining whether the defendants concealed the fact that the alleged crimes were committed, we will first review prior Kansas cases that discuss the issue of concealment and the tolling of the statute of limitations.

In Kansas, concealment has been applied mainly in embezzlement or theft/larceny cases. One of the earliest cases discussing concealment and determining the statute of limitations was not tolled is State v. Heinz, 121 Kan. 547, 247 Pac. 631 (1926), which dealt with larceny of a surveyor's transit. In Heinz, the State relied on R.S.1923, 62-504, the predecessor to K.S.A. 21-3106(4)(c), which provided that, if any person "conceals the fact of the crime, the time of absence or concealment is not to be included in computing the period of limitations." Heinz, 121 Kan. at 548, 247 P. 631. In Heinz, the larceny was committed on February 23, 1921; the transit was known to be missing the next day, but the item was not seen again until 1925 when it was found in the defendant's possession. The defendant claimed that there was no evidence that he had concealed the crime; therefore, the statute of limitations prevented the State from prosecuting him for the larceny. The Heinz court noted that the defendant's secretion of the item did not conceal the fact that it had been stolen. The court stated that for concealment to toll the statute of limitations, some positive affirmative acts designed to prevent the discovery of the commission of the offense was needed and not mere silence or inaction.

                Heinz, 121 Kan. at 548, 247 Pac. 631.   It determined that the statute of limitations precludes an accused from availing himself of the [248 Kan. 685] defense where he conceals the fact of the crime.  To prevent the limitation from operating in the defendant's favor, he must have concealed the fact of the crime and not merely his connection with the crime.  The concealment must result from the defendant's affirmative act, designed and calculated to prevent discovery of the commission of the offense with which he is charged;  mere silence is not enough
                

In State v. Watson, 145 Kan. 792, 67 P.2d 515 (1937), a justice of the peace in 1930 embezzled money he collected as a fine from the sale of a car. The information filed September 25, 1935, alleged that ever since the commission of the offense the justice of the peace had continuously concealed the fact of the crime. After reviewing the statute of limitations, G.S.1935, 62-503, the Watson court noted that concealment must be action or conduct by the accused...