State v. Saylor, 51047
| Decision Date | 04 April 1980 |
| Docket Number | No. 51047,51047 |
| Citation | 4 Kan.App.2d 563,608 P.2d 421 |
| Parties | STATE of Kansas, Appellee, v. Glenn Lee SAYLOR, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
In an appeal from a jury conviction of felony theft by deception, it is held : where there was insufficient evidence that the victim was deceived by or relied on defendant's representations, the trial court erred in refusing to instruct the jury on the lesser included offense of attempted theft by deception. (Following State v. Finch, 223 Kan. 398, 573 P.2d 1048 (1978)).
Wesley M. Norwood, of Riling, Norwood, Burkhead & Fairchild, Chartered, Lawrence, for appellant.
Michael J. Malone, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before PARKS, P. J., and ABBOTT and SWINEHART, JJ.
This is an appeal from a jury conviction of felony theft by deception. K.S.A.1979 Supp. 21-3701(b ). Defendant Glenn Saylor contends that there was insufficient evidence to establish the charge of theft by deception and that the trial court erred in failing to give an instruction on attempted theft by deception.
On September 27, 1978, at approximately 2:15 p. m., Sharon Tenpenny, the security manager at the Lawrence K-Mart store, observed the defendant from a security window as he strolled around the store picking up various items of merchandise, placing them in his shopping cart and wheeling them back to the same location in the hardware section of the store. Specifically, Ms. Tenpenny testified that she saw defendant make 10 or more trips back to the hardware department with merchandise he would place items in the upper compartment of the shopping cart, disappear from view in that area of the store and then return with an empty cart. She remembered seeing defendant pick up a chain saw on two of those trips and place them in a box in the hardware department. Ms. Tenpenny also testified that she saw defendant use a small bottle of glue at the location of the box in the hardware department and later deposit the bottle on a counter before leaving the store.
Following defendant's departure from the store, Ms. Tenpenny located a box in the hardware section which belonged in the toy section. She did not move the box since several heavy items were stacked on top of it, but she noticed wet glue seeping out from under the cardboard flaps. She then notified John Pink, her area security supervisor, and Officer Fox of the Lawrence Police Department. Upon his arrival from Kansas City, Mr. Pink went to the hardware department where Ms. Tenpenny pointed out the box which was supposed to have contained a plastic toy chest shaped like a pig. Pink testified that the lid appeared to have been opened and resealed and that the box was extremely heavy when he lifted it.
Around 9:30 that evening the defendant entered the store and was observed by Ms. Tenpenny. The police were notified and Officer Fox agreed to meet Ms. Tenpenny outside the store. Ron Schwantes, the store manager, saw defendant pick up the box and place it in his shopping cart. Shortly thereafter, the defendant went through the checkout counter and paid for two items, a quart of oil and the toy chest box, marked at $13.97. Defendant was arrested outside the store in the parking lot and the box was found to contain over $500 in merchandise.
Defendant relies on State v. Finch, 223 Kan. 398, 573 P.2d 1048 (1978), to support his contention that his conviction of theft by deception should be reversed. In Finch, the evidence established that the security guard observed the defendant switch price tags on baby dresses with other tags which indicated a lower price. The guard notified the cashier of the switch but instructed her to allow the defendant to check out paying only the price marked. The court held:
Finch, 223 Kan. at 404, 573 P.2d at 1053.
The court concluded that the State failed to prove actual deception and reliance. Rather than discharging the defendant completely, it held that the trial court erred in failing to submit the case to the jury under proper instructions on the lesser included offense of attempt to commit theft by deception, as defined by K.S.A. 21-3301(1). The Finch case was remanded with directions to grant a new trial on the lesser included...
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State v. Saylor
...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 ......