State v. Ward
| Decision Date | 12 January 2018 |
| Docket Number | No. 111,640,111,640 |
| Citation | 307 Kan. 245,408 P.3d 954 |
| Parties | STATE of Kansas, Appellee, v. Christopher R. WARD, Appellant. |
| Court | Kansas Supreme Court |
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and Allie J. Prester, legal intern, was with him on the brief for appellant.
Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
In this appeal the State challenges a Court of Appeals panel's reversal of defendant Christopher Richard Ward's convictions for theft by deception and making false information. See State v. Ward , 52 Kan.App.2d 663, 372 P.3d 417 (2016). We agree with the panel that the evidence to support the convictions was insufficient and affirm its decision; our reasoning differs slightly from that of our colleagues on the Court of Appeals. Defendant is entitled to reversal of both of his convictions.
Ward and his friend Andrew Rhodes formed and operated a construction business, All Construction Guaranteed Roofing and Restoration (ACG). Their financial arrangement was a loose one. They merely orally agreed to become general contractors who would supply materials and hire subcontractors to perform work on projects. Neither had a set salary; occasionally they would estimate profits and divide them evenly.
A 2011 hailstorm in Johnson County provided plentiful work for ACG, but the next year brought fewer opportunities. ACG struggled before winning a bid for a large painting project at a townhome complex, which promised a healthy profit. Still, ACG's cash flow was insufficient, and Ward told Rhodes that he would approach Orin Sweeney about a loan to the company.
Sweeney, who owned two construction businesses, would eventually testify in Ward's trial that he met with Ward and gave him a $20,000 check, Number 1073, which was made payable to "ACG Restoration." The check was drawn on Sweeney's business checking account with Bank of America. Although Ward had asked Sweeney to add Ward's name as a payee on the check, Sweeney refused.
Undeterred, Ward added "or Chris Ward" on the payee line of the check after leaving the meeting with Sweeney. Later the same day he deposited the check into his personal account at First National Bank.
Rhodes did not learn of the check until weeks later, when Sweeney, unsuccessful in contacting Ward, turned to Rhodes to obtain repayment of the loan. When Sweeney discovered that Ward had added his name as an alternative payee of the check, he reported Ward's actions to law enforcement.
As a result, the State charged Ward with two counts:
During opening statements at trial, Ward's counsel introduced the defense theory that Ward had sold the entire apartment complex project to Sweeney and that the $20,000 was to be Ward's share of profit from the sale. In short, according to Ward, he had not done anything more than claim his ultimate due early in the transaction.
The testimony of Sweeney and Rhodes did not support Ward's version of events.
Sweeney testified that Ward arrived for their meeting with a preliminary handwritten loan agreement. The agreement included a signature purporting to be that of Rhodes. Sweeney refused to sign the agreement but, after some negotiation, assented to making the $20,000 loan to ACG. According to Sweeney, ACG would keep the next two payments from the project on the complex; then all future payments would go to Sweeney's company. Sweeney's company would also receive $15,000 of the realized profit once ACG completed the project, leaving any remaining profit for ACG. Sweeney was clear—he intended only to provide temporary financial backing. Bank of America reimbursed Sweeney $20,000 when it was alerted to Ward's alteration of the payee line on the check.
Rhodes testified that Ward insisted on meeting with Sweeney alone, because Rhodes and Sweeney had not previously been acquainted. Rhodes' understanding of the agreement between Sweeney and ACG was substantially similar to that of Sweeney. Rhodes testified that shortly after Ward's meeting with Sweeney, Ward told him Sweeney had agreed to help ACG for $15,000 of the profit from the project, but ACG would finish the project. Ward said nothing about Sweeney's $20,000 check. Rhodes denied signing the preliminary handwritten loan agreement Ward had presented to Sweeney. He also testified that Ward left town sometime after meeting with Sweeney.
A representative from First National Bank testified that Ward would not have been permitted to deposit Sweeney's check into his personal account but for the presence of "or Chris Ward" on the payee line. The representative also said Ward had called the bank the day he deposited the check to try to get immediate access to the cash, which was refused. First National Bank eventually reimbursed Bank of America for the amount Bank of America reimbursed Sweeney.
The State also introduced Ward's personal bank statements into evidence; they revealed that, in the days before his meeting with Sweeney, Ward withdrew substantial sums of money through ATMs at local casinos. Moreover, his personal account was overdrawn in the days before he met with Sweeney. As soon as Sweeney's check cleared, Ward again made numerous withdrawals through ATMs at local casinos.
The State did not call a representative from Bank of America to testify, but check Number 1073 was introduced into evidence.
In addition to testifying to his understanding of the deal, as outlined in his counsel's opening statement, Ward acknowledged before the jury that Sweeney had declined his request to add his name to the payee line of the check. Ward admitted that he had added his name but said Sweeney knew he had done so.
The judge gave the following jury instruction for the theft by deception charge:
After conviction on both counts, Ward was given a total sentence of 30 months in prison and was ordered to pay $20,000 in restitution to First National Bank.
On appeal, Ward argued that the evidence of theft by deception was insufficient, and that the State proved the crime of forgery rather than making false information, compelling reversal of both convictions. He also raised an instruction issue, challenged the denial of a defense motion for mistrial, and argued that cumulative error required reversal.
The Court of Appeals panel ruled that Ward had not "deceived" either "owner" identified by the State in its complaint—Bank of America or ACG—which meant that the evidence of theft by deception was insufficient. It also agreed with Ward that his conduct satisfied the elements of forgery rather than making a false information. The panel therefore reversed both convictions. State v. Ward , 52 Kan.App.2d 663, 677-78, 372 P.3d 417 (2016).
When sufficiency of the evidence is challenged in a criminal case, we view the evidence in the light most favorable to the prosecution and determine whether we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. If so, we affirm; if not, we reverse. On the way to the outcome, we "do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations." State v. Qualls , 297 Kan. 61, 66, 298 P.3d 311 (2013).
Ward was convicted of theft by deception from ACG or Bank of America. In Kansas theft by deception is defined as: "[W]ith intent to permanently deprive the owner of the possession, use or benefit of the owner's property or services ... obtaining control over property or services, by deception." K.S.A. 2016 Supp. 21-5801(a)(2). Under this definition, we have consistently required the State to present evidence that the person relinquishing control of the property State v. Laborde , 303 Kan. 1, 6, 360 P.3d 1080 (2015).
Based on the State's charge and the district judge's jury instruction, in order for us to affirm Ward's conviction, we must see sufficient evidence in the record that (1) either ACG or Bank of America was an owner of the $20,000, (2) Ward obtained control over $20,000 by means of a false statement or...
To continue reading
Request your trial
-
State v. Fitzgerald
...document in any specific case still sets the outer limits of the conviction or convictions that can result. See State v. Ward , 307 Kan. 245, 259-60, 408 P.3d 954 (2018) (State failed to prove crimes charged, regardless of whether it may have proved another crime; conviction reversed). With......
-
State v. Chavez
...mental states statutes. Statutory interpretation is a question of law over which this court has unlimited review. State v. Ward , 307 Kan. 245, 251, 408 P.3d 954 (2018). Once we have interpreted these statutes, the remaining question is whether the State presented sufficient evidence to sup......
-
State v. Thummel
...2018 Supp. 21-5801(a)(1).In State v. Rios , 246 Kan. 517, 527, 792 P.2d 1065 (1990), abrogated on other grounds by State v. Ward , 307 Kan. 245, 408 P.3d 954 (2018), the Kansas Supreme Court explained that before 1969, when the various crimes of theft were consolidated into a single statute......
-
State v. Dooley
...common meaning of a common term. More frequently, dictionary definitions are good sources for such common meanings. State v. Ward , 307 Kan. 245, 260, 408 P.3d 954 (2018). For instance, Webster's Third New International Dictionary defines "abscond" as "1 : WITHDRAW, FLEE ... 2 : to depart s......