State v. Saylor

• Decision Date: 01 November 1980
• Docket Number: No. 51047,51047
• Parties: STATE of Kansas, Plaintiff-Appellee, v. Glenn Lee SAYLOR, Defendant-Appellant.
• Court: Kansas Supreme Court

Page 1166

618 P.2d 1166

228 Kan. 498

STATE of Kansas, Plaintiff-Appellee, v. Glenn Lee SAYLOR, Defendant-Appellant.

No. 51047.

Supreme Court of Kansas.

Nov. 1, 1980.

Syllabus by the Court

1. In a prosecution for theft by deception under K.S.A. 1979 Supp. 21-3701(b), reliance on the false representation in sufficiently established, although the security employees in a self-service store had a suspicion of defendant's intent to steal merchandise, where the undisputed evidence showed the cashier at the checkout counter relied upon the false representation made by defendant as to the contents of a box and permitted defendant to take control of the box and its hidden contents outside the confines of the store.

2. Where a customer in a self-service store conceals on his person, or in a box or receptacle, property of the store, and has the requisite criminal intent, that customer has committed a theft under subsection (a) of K.S.A. 1979 Supp. 21-3701.

3. Where there is a question in the mind of the prosecutor as to what the evidence will disclose at trial, the correct procedure in a prosecution for theft under K.S.A. 1979 Supp. 21-3701 is to charge the defendant in the alternative under those subsections of the consolidated theft statute which may possibly be established by the evidence.

Wesley M. Norwood, of Riling, Norwood, Burkhead & Fairchild, Chartered, Lawrence, argued the cause, and was on the briefs for defendant-appellant.

Michael J. Malone, Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and William Madden, and Greg Hammel, Legal Interns, were with him on the briefs for plaintiff-appellee.

PRAGER, Justice:

This is a direct appeal from a conviction of theft by deception (K.S.A. 1979 Supp. 21-3701(b)). The Court of Appeals in a published opinion, State v. Saylor, 4 Kan.App.2d 563, 608 P.2d 421 (1980), reversed and remanded with directions to grant the defendant a new trial on the lesser included offense of attempt to commit theft by deception. We granted review on petition of the State.

The facts in the case are well summarized in the opinion of the Court of Appeals. On September 27, 1978, in the city of Lawrence, a K-Mart store security officer observed the defendant, Glenn Lee Saylor, as he made numerous trips through the store placing items in his shopping cart. He would go to the hardware department with items in the cart, but would leave that department with an empty cart. The security officer observed the defendant move about in one particular area, but was unable to see exactly what he was doing. She saw him take a bottle of glue to the area, use it, and then return it to a counter. The defendant then made a minor purchase and left the store. The security officer notified her supervisor. On investigation, she found in the hardware department a cardboard box which should have been located in the toy department and which ordinarily would contain a $13.97 plastic pig toy chest. The cover of the box had recently been resealed with glue. The security officer did not move or otherwise touch the box. When the defendant returned to the store later that evening, the security officer and the police were on hand. The defendant went to the hardware department where he placed the box in a shopping cart. He proceeded to the checkout counter and paid for two items-a quart of oil and a plastic pig toy chest priced at $13.97. The checkout cashier did not suspect there was anything wrong. The defendant was arrested outside the store in the parking lot. There the box was opened and found to contain several chain saws, metal rules, cigarettes, heavy duty staple guns, and record albums, with a total value in excess of $500. The defendant was arrested for theft. He was charged with and convicted of theft by deception under K.S.A. 1979 Supp. 21-3701(b).

The defendant appealed raising several points of alleged error. The Court of Appeals reversed the conviction, finding error in the trial court's failure to instruct the jury on attempted theft by deception. Noting this court's decision in State v. Finch, 223 Kan. 398, 573 P.2d 1048 (1978), the Court of Appeals held that, since there had been no actual reliance by or actual deception of the corporate victim, K-Mart, the defendant could only be guilty of attempted theft by deception. The Court of Appeals reversed the conviction and directed a new trial on attempted theft by deception.

On petition for review, the State of Kansas urges this court to reconsider the elements of theft by deception as enumerated by Finch, claiming that by interpreting 21-3701(b) to require reliance by or actual deception of the owner, the court added to the offense of theft an element not contained in the statutory definition. Alternatively, the State argues that the present case is distinguishable from Finch, claiming that there was actual deception in this case, at least in part, since the checkout cashier was totally unaware of defendant's larcenous intent and no one within the employment of K-Mart had more than a suspicion of defendant's scheme at the time defendant purchased the merchandise and left the store with the box. The State finally argues that, under the consolidated theft statute, a conviction of theft should be sustained, even though the burden of proof is not met as to the offense specified in the indictment or information, if the evidence supports conviction of theft under any other subsection of K.S.A. 1979 Supp. 21-3701.

We have reconsidered the rule announced in State v. Finch, and have concluded that it is a correct statement of the law. The syllabus in Finch states the rule which is consistent with prior decisions of this court and with the rule generally accepted throughout the United States:

"In order to convict a defendant of theft by deception under K.S.A. 21-3701(b) the state must prove that the defendant with the required intent obtained control over another's property by means of a false statement or representation. To do so the state must prove that the victim was actually deceived and relied in whole or in part upon the false representation."

The rationale of the rule and the reasons why it was adopted by this court are discussed in depth in that opinion. We have concluded, however, that, under its particular facts, the present case is distinguishable from Finch, in that the K-mart checkout cashier, who permitted the defendant to leave the store premises with the box, was completely unaware of the true contents hidden in the box and relied upon the deception practiced by the defendant at that time.

The State argues that the defendant could have properly been charged under section (a) of K.S.A. 1979 Supp. 21-3701, since the evidence established that the defendant, with intent to deprive the owner permanently of the possession, use, or ownership of the owner's property, exerted unauthorized control over the property by concealing the articles in the cardboard box. We agree with the State. It is clear to us that where a customer in a self-service store conceals on his person, or in a box or receptacle, property of the store and has the requisite specific criminal intent, that customer has committed a theft under subsection (a) of K.S.A. 1979 Supp. 21-3701. The specific criminal intent is difficult to prove, however, unless the customer actually fails to make proper payment for the property at the cashier's desk and leaves the store with the same remaining concealed. In this case, the defendant was not specifically charged under subsection (a) of K.S.A. 1979 Supp. 21-3701. The State did not seek to amend the information to include that subsection, nor was an appropriate instruction on that subsection given to the jury. The State thus relied only on proving theft by deception under subsection (b). The conviction of the defendant must stand or fall on the sufficiency of the evidence to show that the defendant, with the required specific intent, obtained control over the property by deception. We have concluded that the evidence was sufficient and that an instruction on attempted theft was not required.

In concluding that the evidence established a completed theft by deception, the trial court pointed out that the security employees of K-Mart had only a suspicion that the defendant was planning to steal articles of merchandise from the store. The actual merchandise taken was not determined until the box was opened following the defendant's arrest in the parking lot. We think it also important to note that the act of deception and false representation did not actually occur until the defendant deceived the cashier into believing that the box contained a plastic pig toy chest of a value of $13.97.

The rule of Finch simply requires the State to prove that the victim was actually deceived and relied wholly or in part upon the false representation made by the defendant. We note that this same result was reached under similar factual circumstances in Lambert v. State, 55 Ala.App. 242, 314 So.2d 318, cert. denied 294 Ala. 763, 314 So.2d 322 (1975). In Lambert, it was held that reliance upon a misrepresentation was proved in a prosecution for false pretense, although the evidence showed that numerous persons in the store knew of defendant's scheme to change price tags on merchandise, where the checkout girl...