Caseflicks

Supreme Court of Kansas • 1980

State v. Saylor

618 P.2d 1166 | 228 Kan. 498 | 1980 Kan. LEXIS 348

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Takeaway

In short, this case confirms that theft by deception requires actual victim reliance, but holds that reliance exists when an unwitting cashier accepts a defendant's deceptive representation and releases the concealed merchandise.

Background

A K-Mart security officer watched Glenn Lee Saylor make repeated trips through the store, taking merchandise in a cart to the hardware department and returning with the cart empty. The officer later found a toy-chest box in hardware whose lid had recently been resealed with glue. The box was supposed to contain a $13.97 plastic pig toy chest.

When Saylor returned that evening, he put the box in a cart, took it to the checkout counter, and paid for the toy chest and a quart of oil. The cashier did not know that the box actually contained chain saws, staple guns, cigarettes, records, and other merchandise worth more than $500. Saylor was arrested outside the store after the box was opened.

Saylor was charged and convicted of theft by deception under K.S.A. 1979 Supp. 21-3701(b). The Court of Appeals reversed, reasoning under State v. Finch that theft by deception requires the victim's actual reliance on the defendant's misrepresentation. It directed a new trial for attempted theft by deception. The State sought review, arguing that Finch should be reconsidered, that the cashier was in fact deceived and relied on Saylor's deception, and that the conviction could alternatively rest on another form of theft under the consolidated theft statute.

Issues

Issue #1

Whether theft by deception under K.S.A. 1979 Supp. 21-3701(b) requires proof that the victim was actually deceived and relied on the defendant's false representation.

Holding

Yes. The Court reaffirmed State v. Finch: the State must prove actual deception and reliance, at least in part, by the victim.

Reasoning

The Court declined the State's invitation to abandon Finch. Under Finch, theft by deception is complete only when a defendant, acting with the required intent, obtains control of another's property through a false statement or representation that actually deceives the victim and induces reliance.

This reliance requirement follows the traditional distinction between theft by deception and an unsuccessful deceptive scheme. A false representation that does not cause the victim to part with property may support attempted theft by deception, but it does not establish the completed offense.

Issue #2

Whether the evidence showed actual deception and reliance sufficient to support Saylor's conviction for completed theft by deception.

Holding

Yes. The cashier relied on Saylor's false representation that the box contained the toy chest for which he paid.

Reasoning

Although K-Mart security personnel suspected that Saylor might be attempting a theft, they had not determined the contents of the box before his arrest. Their suspicions therefore did not eliminate the possibility that another K-Mart employee could be actually deceived by Saylor's scheme.

The operative deception occurred at the checkout counter. By presenting the resealed box and paying only the listed price of a plastic toy chest, Saylor represented that the box contained that toy chest rather than the concealed merchandise worth more than $500.

The cashier was unaware of the box's true contents, accepted payment based on Saylor's representation, and permitted him to take the box and its contents beyond the store. That reliance caused K-Mart to relinquish control of the merchandise, satisfying Finch and establishing completed theft by deception rather than merely an attempt.

Issue #3

Whether the consolidated theft statute permits a theft conviction to be sustained on an uncharged statutory theory when the evidence does not establish the theory charged in the information.

Holding

No. Although the consolidated statute treats traditional theft offenses as one crime, the conviction cannot rest on an uncharged and uninstructed method of theft.

Reasoning

The Court agreed that the purpose of Kansas's consolidated theft statute is to avoid the technical failures that historically resulted from uncertain lines between larceny, false pretenses, embezzlement, and related offenses. On these facts, Saylor's concealment of store property with intent to deprive K-Mart could have supported a theft theory based on unauthorized control under subsection (a).

But the State charged only theft by deception under subsection (b), did not amend the information to add subsection (a), and did not obtain an instruction on that alternative theory. The jury consequently had no proper basis to decide whether Saylor committed theft by unauthorized control.

A prosecutor may protect against uncertainty in the evidence by charging alternative methods of committing theft in separate counts. The trial court may also permit an amendment before verdict when no additional crime is charged and the defendant's substantial rights are not prejudiced. Because neither procedure was used here, the conviction had to stand or fall on the charged deception theory alone.