State v. Schultz

• Decision Date: 16 April 1993
• Docket Number: No. 67484,67484
• Citation: 850 P.2d 818,252 Kan. 819
• Parties: , 33 A.L.R.5th 835 STATE of Kansas, Appellee, v. John G. SCHULTZ, Appellant.
• Court: Kansas Supreme Court

Page 818

850 P.2d 818

252 Kan. 819, 33 A.L.R.5th 835

STATE of Kansas, Appellee, v. John G. SCHULTZ, Appellant.

No. 67484.

Supreme Court of Kansas.

April 16, 1993.

Syllabus by the Court

1. The Fourth Amendment to the United States Constitution does not prohibit the government's obtaining information revealed to a third party and conveyed by that third party to government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and that the confidence placed in the third party will not be betrayed.

2. An individual has no legitimate expectation of privacy in information he or she voluntarily turns over to a third party.

3. This court can construe our state constitutional provisions independent of federal interpretation of corresponding provisions. This state is free as a matter of our law to impose greater restrictions on police activity than those that federal courts hold to be necessary upon federal constitutional standards.

4. Failure of an information to sufficiently state an offense is a fundamental defect that can be raised at any time, even on appeal.

5. Sufficiency of the indictment or information is to be measured by whether it contains the elements of the offense intended to be charged, sufficiently apprises the defendant of what he or she must be prepared to meet, and is specific enough to make a plea of double jeopardy possible.

6. An information that charges an offense in the language of the statute or its equivalent is sufficient.

7. In a criminal proceeding, if, upon hearing, the trial court determines that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that the witness' testimony is material, and that it is necessary to take the witness' deposition in order to prevent a failure of justice, the court may authorize the prosecuting attorney to take the deposition of the witness.

8. Objection may be made at trial or a hearing to receiving into evidence any deposition or part thereof for any reason that would require the exclusion of the evidence if the witness were then present and testifying.

9. Admission or exclusion of evidence is within the sound discretion of the trial court, subject to exclusionary rules.

10. To establish a conspiracy it is not necessary that there be any formal agreement manifested by formal words, written or spoken; it is enough if the parties tacitly come to an understanding in regard to the unlawful purpose and this may be inferred from sufficiently significant circumstances.

11. While an agreement is a necessary element of a conspiracy, the existence of the agreement need not be proved directly, but may be inferred from other facts proved. If one concurs in a conspiracy, no proof of an agreement to concur is necessary to establish guilt.

12. If the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

13. In order to prove theft by deception, the State must prove that the defendant obtained control over the property by means of a false statement or misrepresentation, that the false statement or misrepresentation deceived the victim, and that the victim in whole or in part relied upon the false statement in relinquishing control of the property to the defendant.

Robert D. Hecht, of Scott, Quinlan & Hecht, Topeka, argued the cause, and Deborah L. Hughes, of the same firm, was with him on the brief, for appellant.

Kyle G. Smith, Asst. Atty. Gen., argued the cause and was on the brief, for appellee.

ABBOTT, Justice:

This is a direct appeal by the defendant, John G. Schultz, from his convictions of 10 counts of theft by deception involving his purchasing federal and state surplus property.

In Kansas, the Department of Corrections administers both the federal and the state surplus property programs. K.S.A. 75-52,118. In order to participate in the state program, an entity must qualify for federal eligibility. See K.S.A. 75-6601 et seq. Although there are differences between the federal and state surplus property programs, the differences are immaterial to this case.

On November 30, 1987, the City of Earlton, Kansas, (City) qualified as an eligible donee to acquire federal surplus property. The City also qualified for the state surplus property program. An authorization form was completed on behalf of the City and designated those authorized to sign on the City's behalf. The form listed Kemper Seltmann, "Board Chairman"; Larry Bailey, "Councilman"; John Schultz, "Purchasing Agent"; and Dalton Stewart, "Councilman." The form included the signature of each.

After the City qualified as an eligible donee, federal and state surplus property was purchased by Schultz in the City's name. Schultz purchased such things as diesel caterpillar engines, a forklift, a forklift truck, a road grader, a trailer, tons of scrap aluminum, a plow, and numerous trucks.

According to his deposition testimony, Dalton Stewart, city treasurer, in early 1988 became aware of purchases Schultz had made upon receipt of government documents asking how the City had utilized the items purchased. Stewart was concerned because the purchases had not been approved at any city council meeting and because the City had never received the property. He subsequently became aware of an additional, but unauthorized, checking account under the name of City of Earlton Industrial Development Fund.

The city council met on February 23, 1988, to discuss Schultz' purchases in the City's name. Schultz was present at the meeting and was instructed not to purchase any more surplus property in the City's name. The city council also voted to close the City of Earlton Industrial Development Fund checking account. The city council sent a letter to the surplus property headquarters in Topeka, stating that Schultz was no longer authorized to purchase property in the City's name. The State struck Schultz' name from the City's authorization card.

Agent David Christy of the Kansas Bureau of Investigation (KBI) began investigating Schultz' purchasing of surplus property. Pursuant to K.S.A. 22-3101(2) inquisition subpoenas, Christy obtained Schultz' bank records from the Bank of Commerce in Chanute, Kansas, and his telephone records from Southwestern Bell Telephone Company (SWB).

The State charged Schultz with 10 counts of theft by unauthorized control or, in the alternative, of theft by deception. Schultz moved to suppress the evidence or information obtained from the bank and SWB pursuant to the inquisition subpoenas. The trial court accepted the State's argument that Schultz had no standing to challenge the inquisition subpoenas and denied the motion to suppress. The defendant also filed a motion to dismiss, claiming the complaint failed to sufficiently charge the offense of theft by deception. The court denied the motion. Additionally, Schultz objected without success to the State's deposing of Dalton Stewart and to the trial court's order admitting Dalton Stewart's deposition into evidence at trial.

A jury convicted Schultz of 10 counts of theft by deception. The trial court suspended Schultz' sentence, placed him on supervised probation for two years, and fined him $5,000. The defendant filed numerous post-trial motions, which the trial court denied. The court, however, did grant the State's motion to release property Schultz had purchased to the Department of Corrections. Schultz filed a timely appeal. The appeal was transferred to this court, pursuant to K.S.A. 20-3018(c).

I. STANDING

Schultz claims the trial court erred in denying his motion to suppress information and documents obtained by inquisition subpoenas. He contends the trial court erred in ruling he did not have standing to challenge the obtaining, issuance, and execution of the inquisition subpoenas.

Based upon United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); Southwestern Bell Tel. Co. v. Miller, 2 Kan.App.2d 558, 583 P.2d 1042, rev. denied 225 Kan. 845 (1978); and Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), the trial court ruled that the defendant had no standing to object to subpoenas issued for his bank and telephone records because he has no reasonable expectation of privacy in those records.

In Miller, 425 U.S. at 440, 96 S.Ct. at 1622 the United States Supreme Court reasoned that a bank depositor had no reasonable expectation of privacy in bank records because the documents were the bank's business records, not the depositor's "private papers." The Court stated:

"The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business....

"The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. [Citation omitted.] This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. [Citations omitted.]" 425 U.S. at 442-43, 96 S.Ct. at 1624.

In Southwestern Bell Tel. Co., the Kansas Court of Appeals stated the Miller decision "establishes that bank customers have no Fourth Amendment interest in their bank records, so that such records could be lawfully obtained by a grand jury through subpoenas duces tecum addressed to a bank. ...