State v. Stephens

• Decision Date: 23 January 1998
• Docket Number: No. 77575,77575
• Citation: 263 Kan. 658,953 P.2d 1373
• Parties: STATE of Kansas, Appellant, v. Carolyn A. STEPHENS, Appellee.
• Court: Kansas Supreme Court

Page 1373

953 P.2d 1373

263 Kan. 658

STATE of Kansas, Appellant, v. Carolyn A. STEPHENS, Appellee.

No. 77575.

Supreme Court of Kansas.

Jan. 23, 1998.

Syllabus by the Court

1. Rules to be applied in preliminary examinations are stated and applied.

2. The degree of a theft crime is determined by the value of the property stolen. The value of what the victim received or the extent of the victim's loss is immaterial in making that determination.

K. Michael Warner, Assistant District Attorney, argued the cause, and Steven J. Obermeier, Assistant District Attorney, Paul J. Morrison, District Attorney, and Carla J. Stovall, Attorney General, were on the brief, for appellant.

Lewanna Bell-Lloyd, Olathe, argued the cause and was on the brief, for appellee.

ALLEGRUCCI, Justice.

The State appeals the trial court's dismissal at the conclusion of the preliminary examination of the complaint that charged Carolyn A. Stephens with one count of theft by deception of over $25,000. The State appeals pursuant to K.S.A. 22-3602(b)(1).

After considering the evidence presented at the preliminary examination in July 1996, the trial court determined that there was not probable cause to believe that defendant committed the crime charged. The deficiency in the evidence was in the "value element of the crime."

Paul and Susan Smith were looking for a business to buy. Through a business broker, they learned in February 1994 that a liquor store located at 95th and Nall in Johnson County, Kansas, was available for purchase. The store was owned by Carolyn Stephens. The Smiths met with her several times. Stephens provided them with reports showing the store's expenses and income. In late February, defendant gave them copies of forms with the heading "Kansas Department of Revenue, Division of Taxation, Liquor Enforcement Tax Return." There was a completed form for each month in 1993 showing the total gross receipts for the month and the amount of tax due for the month (8% of the gross). Each form bears the signature of Carolyn Ann Stephens, who is identified as the owner of the business. Also admitted into evidence were copies of the 1993 completed forms that actually were filed with the Kansas Department of Revenue. Comparison of the two sets of forms shows that the gross receipts from the forms provided to the Smiths consistently exceed those on the forms filed with the Department of Revenue (rounded to nearest dollar):

                      1993        Smith form       Dept. of Revenue form
                      Jan.         $23,653                $19,289
                      Feb.          19,050                 16,682
                      March         22,204                 18,037
                      April         20,841                 16,363
                      May           28,934                 17,141
                      June          27,837                 18,141
                      July          29,861                 19,485
                      Aug.          28,773                 16,555
                      Sept.         20,781                 11,542
                      Oct.          24,851                 12,340
                      Nov.          23,085                 15,271
                      Dec.          38,375                 18,687
                

On May 2, 1994, Stephens and Paul Smith entered into a purchase agreement for the liquor store. The parties agreed

"that for tax and other purposes, the purchase price of $59,000.00 shall be and is hereby allocated as follows:

a) $29,000.00 as and for equipment, furniture and trade fixtures.

b) $30,000.00 as and for the inventory named herein."

Defendant executed a bill of sale for the property the same day. Susan Smith testified that she and her husband relied on the misrepresentations regarding the amount of income in entering into the purchase agreement. The Smiths gave a check in payment of the purchase of the liquor store in the amount of $57,000. When the Smiths began operating the business, they found that their gross receipts were about half what defendant had represented them to be.

After considering the evidence presented by the State at the preliminary examination, the trial court stated:

"The Court believes that the State has failed to sustain its burden of proof that a crime of felony theft of property worth $25,000 or more has been proven by the State. One of the essential elements of that crime is that the theft be of property of 25,000 or more. Just because someone gives a cashier check for 57,000 doesn't mean that they've been deprived of 57,000. The victims in this case purchased some inventory and some equipment. They may have been induced by the fraudulent statements to buy the liquor store in the first place, but I have no evidence in front of me which suggests what the true value of the liquor store is--or no evidence from which one can conclude that the theft was of $25,000 or more. The victims received something and it had some value. Whether that value was 50,000, 40,000, 35,000, or 20,000, I don't know. I haven't heard a bit of evidence about that. The Court finds that [based on] the value element of the crime of felony theft there's not probable cause to believe that occurred."

The trial court announced that it was dismissing the case. The State asked the trial court to bind over defendant on the charge of making a false writing for each of the tax forms. Defense counsel objected on the ground that the statute of limitations had run for prosecution on the proposed amended charge. The trial court took the matter under advisement.

In August 1996, the parties again appeared before the trial court. The trial court announced that it had determined that the crime of making a false writing, if committed, was completed on or about March 5, 1994. It concluded: "The prosecution for the crime of making a false writing is barred by the statute of limitations." The State has not pursued the statute of limitations question on appeal.

The State appeals the trial court's dismissal of the complaint on the ground that there was no proof on an essential element of the charged crime. In State v. Garza, 259 Kan. 826, 827, 916 P.2d 9 (1996), this court stated:

"The purpose of a preliminary examination is to determine whether it appears that a felony has been committed and that there is probable cause to believe the defendant committed the offense. If those findings are made, the magistrate will bind the defendant over for arraignment. K.S.A. 22-2902(3). In weighing the evidence the magistrate must determine (1) whether there is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief a felony has been committed and (2) if so, whether there is sufficient evidence to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt. State v. Bell, 259 Kan. 131, Syl. pp 2, 3, 910 P.2d 205 (1996); see State v. Farmer, 259 Kan. 157, Syl. p 2, 909 P.2d 1154 (1996); State v. Bockert, 257 Kan. 488, Syl. p 2, 893 P.2d 832 (1995). When the State appeals the dismissal of a complaint, an appellate court's review of an order discharging the defendant for lack of probable cause is de novo. See Farmer, 259 Kan. 157, Syl. p 1, 909 P.2d 1154; Bell, 259 Kan. 131, Syl. p 5, 910 P.2d 205; Bockert, 257 Kan. 488, Syl. p 1, 893 P.2d 832."

K.S.A. 21-3701(a)(2) provides: "Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property: ... obtaining by deception control over property." The degree of the crime of theft is established by the value of the stolen property. K.S.A. 21-3701(b) provides:

"(1) Theft of property of the value of $25,000 or more is a severity level 7, nonperson felony.

"(2) Theft of property of the value of at least $500 but less than $25,000 is a severity level 9, nonperson felony.

"(3) Theft of property of the value of less than $500 is a class A nonperson misdemeanor.

"(4) Theft of property of the value of less than $500 is a severity level 9, nonperson felony if committed by a person who has, within five years immediately preceding commission of the crime, been convicted of theft two or more times."

The theory of prosecution in the present case is that the stolen property is the cashier's check. According to the State, " 'We don't need to get into this difference in value because [the Smiths] would not have given up their cashier's check had they known these representations were false.' " Thus, according to the State's argument, $57,000 was stolen.

The State cites State v. Stanley, 116 Kan. 449, 227 P. 263 (1924), in support of its position that a victim's suffering a pecuniary loss is not determinative of the offense. Stanley was convicted of obtaining money under false pretenses. He represented to a purchaser, Gottman, that he owned certain real property and took payments over a period of a year and a half from the purchaser, who then was served with a notice to vacate the property. Rose actually owned the property, Stubbs had an option to buy it from Rose, and Stanley had an option to buy it from Stubbs. Stanley argued that because he had a valid and enforceable option when he sold the property to Gottman, he lacked criminal intent to defraud. This court disagreed: "The false pretense charged and relied on is that he induced the purchase and procured the money on the representation that he was the owner of the property." 116 Kan. at 451, 227 P. 263. There was no contention that Gottman actually received something of value for his money, nor was value of the property at issue.

The other Kansas case relied on by the State is State v. Aiken, 174 Kan. 162, 254 P.2d 264 (1953). Aiken sold insurance policies on the representation that the annual premium was approximately twice the actual price, and he kept the amount over and above the premium for his personal benefit. Some victims recovered their losses from another insurance company, which prompted the defendant to argue...