Opinion
No. 111103.
03-06-2015
STATE of Kansas, Appellee, v. Daniel PRATOR, Appellant.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
Opinion
LEBEN, J.
Daniel Prator appeals his convictions for felony theft and three counts of misdemeanor criminal use of a financial card. The State alleged that he stole Bed Bath and Beyond gift cards out of a coworker's purse while he worked at a graduation ceremony and then used the gift cards to make purchases. At his trial, Prator told the jury that he had found the gift cards on the floor and believed they were lost property.
On appeal, Prator argues that he should receive a new trial because two members of the jury violated his right to an impartial jury when they looked up definitions of “obtain” and “property” on their cell phones during deliberations. But the jurors' independent research did not settle any material issues in the case, so we find that their misconduct (in doing independent research contrary to the judge's instructions) was harmless error.
Since Prator testified he thought the cards were lost property, he also contends that the district court should have instructed the jury on theft of lost or mislaid property as a lesser-included offense of the felony-theft charge. But to be guilty of that offense, Prator must have known or learned who owned the gift cards. Prator did not learn who owned these cards until well after he took them—he learned the owner's identity only when police questioned him after he had used the cards. The State alleged theft—a theft that had long been completed by the time Prator learned who owned the gift cards. Accordingly, there was no reason to give a lesser-included-offense instruction on lost or mislaid property. We affirm the district court's judgment.
Factual and Procedural Background
Robin Christy, a Wichita Technical Institute employee, worked at the school's graduation ceremony on February 11, 2012. She zipped her purse and placed it underneath her coat in a sound booth in the Suderman room. After the graduation ceremony, Christy noticed that her coat was gone, her purse had been unzipped, and her wallet—containing cash, credit cards, and numerous gift cards—was missing from her purse. The director of the Wichita Technical Institute campus had her coat and told her that Daniel Prator—who had worked as a student sound engineer in a different sound booth during the graduation—had found it in the sound booth in the Suderman room.
Christy was missing three gift cards from Bed Bath and Beyond and had receipts associated with those gift cards. The day after the graduation, she went to Bed Bath and Beyond to see if the gift cards could be canceled. Using the gift card numbers from the receipts, she discovered that the gift cards had already been used. Christy viewed a photo of the surveillance-camera footage from the day before and recognized Prator as the person using her gift cards.
The State charged Prator with theft, a severity–level–9 felony, due to his prior theft convictions, and three counts of misdemeanor criminal use of a financial card. At Prator's trial, a Wichita Technical Institute employee testified that Prator was in the sound booth in the Suderman room during the graduation ceremony. Another employee said that Prator would not have needed anything in the sound booth in the Suderman room during the ceremony.
Prator stipulated that he had used three Bed Bath and Beyond gift cards to make purchases on February 11, 2012. He testified that he had found two gift cards on the floor in the Suderman room sound booth when he went to look for microphone equipment for the graduation. He said he had believed the gift cards were lost property.
The jury convicted Prator of theft and two counts of criminal use of a financial card. After the trial, the jurors told the prosecutor and Prator's attorney that they had used the Internet to find definitions of terms used in the jury instructions. In response, Prator filed a motion for a new trial, alleging that the jurors committed misconduct by using their cell phones to search for legal definitions despite the court's frequent instructions not to do any independent research or investigation.
At a hearing the district court held on Prator's motion, juror T.B. said that during deliberations she had used her cell phone to look up the definition of “property” on Google and had shared the definition with the other jurors. T.B. also said that up to six other jurors had done similar research on their phones. Juror S.D. said that she had looked up the word “obtain” using a dictionary application on her phone and had shared the definition with the other jurors.
The district court concluded that the jurors' actions constituted misconduct but that the misconduct did not prejudice Prator's substantial rights because whether the gift cards or items Prator purchased at Bed Bath and Beyond were “property” and whether he “obtained” them were not at issue in the case. The court denied Prator's motion for a new trial.
The district court sentenced Prator to 12 months of probation with an underlying sentence of 11 months in prison for the theft conviction and two 12–month jail sentences for criminal use of a financial card. The jail sentences for criminal use of a financial card would run concurrently with each other but consecutively to the theft sentence. Prator would serve his prison sentence only if he failed to successfully complete his probation.
Prator has appealed to this court.
Analysis
I. The District Court Did Not Err in Failing to Grant Prator a New Trial Based on Juror Misconduct.
Prator asked the district court to grant a new trial because two jurors had used their cell phones to look up the words “obtain” and “property” during deliberations. He contends that their actions violated his Sixth Amendment right to a trial by an impartial jury.
We review the denial of a motion for a new trial for abuse of discretion. State v. Santos–Vega, 299 Kan. 11, 23, 321 P.3d 1 (2014). Judicial discretion is abused when the decision is so arbitrary that no reasonable person would agree with it or when the decision is based on an underlying legal or factual error. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). When determining whether the district court abused its discretion, we first determine whether juror misconduct occurred. See Bell v. State, 46 Kan.App.2d 488, 490–92, 263 P.3d 840 (2011), rev. denied 295 Kan. 1173 (2012). The defendant has the burden of making that showing. 46 Kan.App.2d at 491 (citing State v. Mathis, 281 Kan. 99, Syl. ¶ 2, 130 P.3d 14 [2006] ). If misconduct has occurred, we then apply a harmless-error analysis. The State must show beyond a reasonable doubt that the error did not affect the trial's outcome. Bell, 46 Kan.App.2d at 491–92 (citing State v. Ward, 292 Kan. 541, Syl. ¶ 9, 256 P.3d 801 [2011], cert. denied 132 S.Ct. 1594 [2012] ). If the State cannot make that showing, the district court has abused its discretion in refusing to grant a new trial.
In this case, the State charged Prator with felony theft and three misdemeanor counts of the criminal use of a financial card. The jury instructions for both crimes included the words “obtain” and “property.” The crime of theft is obtaining or exerting unauthorized control over property with the intent to permanently deprive the owner of the possession, use, or benefit of his or her property. K.S.A.2011 Supp. 21–5801(a)(1). The jury instruction for theft said the State had to prove that:
“1. Robin Christy was the owner of the property.
“2. Mr. Prator obtained unauthorized control over the property.
“3. Mr. Prator intended to deprive Robin Christy permanently of the use or benefit of the property.
“4. The value of the property was less than $1,000.
“5. This act occurred on or about the 11th day of February, 2012, in Sedgwick County, Kansas.” (Emphasis added.)
Prator's additional charges were for criminal use of a financial card, which is using a financial card without the consent of the cardholder with the intent to defraud and to obtain money, goods, property, or services. K.S.A 2011 Supp. 21–5828(a)(1). The jury instruction for criminal use of a financial card provided that the State had to prove:
“1. Mr. Prator used a financial card with an account number ending with 660 [and 260 and 727].
“2. The cardholder, Robin D. Christy, had not consented to the use of the financial card by Mr. Prator.
“3. Mr. Prator used the financial card for the purpose of obtaining goods, property and/or services.
“4. Mr. Prator did so with the intent to defraud.
“5. The financial card was unlawfully used in the total amount of less than $1,000.
“6. This act occurred on or about the 11th day of February, 2012, in Sedgwick County, Kansas.” (Emphasis added.)
The instruction also defined “financial card” as “an identification card, plate, instrument, device or number issued by a business organization authorizing the cardholder to purchase, lease or otherwise obtain money, goods, property or services or to conduct other financial transactions.” (Emphasis added.)
The parties agree—and we concur—that the jurors' use of their phones to look up the definitions of words in the instructions was misconduct, so the sole question to resolve this issue is whether the State can show beyond a reasonable doubt that the jurors' misconduct in looking up and using the definitions did not affect the outcome of Prator's trial.
Our appellate courts have found that the jury's improper use of a dictionary during deliberations is harmless error when the evidence of the defendant's guilt is overwhelming. See State v. Goseland, 256 Kan. 729, 735–37, 887 P.2d 1109 (1994) ; State v. Duncan, 3 Kan.App.2d 271, 275, 593 P.2d 427 (1979). Those cases did apply a somewhat different test than we do today; in each, the court required that the defendant show prejudice. Where the evidence against a defendant is not overwhelming, our court concluded in State v. Ransom, No. 82,431, unpublished opinion filed February 18, 2000, slip op. at 7 (Kan.App.), that a juror's decision to look up the definition of a fundamental constitutional concept—reasonable doubt—on the Internet was reversible error.
Prator argues that that his case is similar to Ransom. He contends that the juror misconduct was particularly egregious in his case because the Internet definition of “property” could have been written by an untrustworthy source. He also points out that at the hearing on the motion for a new trial, the district court stated that the evidence against him was not overwhelming. He maintains that the evidence couldn't be overwhelming because there was not clear evidence showing that his control over the gift cards was unauthorized (as required for theft) or that he used them at Bed Bath and Beyond with the intent to defraud (as required for criminal use of a financial card).
But Prator does not show how the definitions of the words “property” and “obtain” could have played an important role in the resolution of his case.
For the felony-theft charge, it's true that the jury could only find Prator guilty by finding that the gift cards and items he purchased at Bed Bath and Beyond were property that he obtained. But Prator's theory of defense did not relate to whether the cards were property or whether he had obtained them. He testified that he had found the lost gift cards and had decided to use them instead of locating their owner. His attorney told the jury in closing argument that because the property had been “lost,” the State could not prove that Prator knew Christy owned the gift cards, that his control over the gift cards was unauthorized, or that he intended to permanently deprive Christy of the gift cards.
For the three charged counts of criminal use of a financial card, Prator's attorney offered only a brief comment in closing argument. He urged that the jury “pay close attention to all the details,” including “whether or not there is sufficient proof as to all three” counts. He noted that there were receipts to look at and numbers identifying the cards on those receipts. The jury ultimately acquitted Prator on one of these counts; no receipt was introduced matching the number on that gift card, so the jury apparently concluded that the State had not proved beyond a reasonable doubt that it had belonged to Christy. But Prator's theory of defense once again did not relate to whether the cards were property or to whether he had obtained goods through the use of the card.
Some jurors apparently felt uncomfortable with their grasp of the words “property” and “obtain,” and they relied on their own research instead of sending a question to the trial judge. But the jurors' outside research on the definitions did not address any of the questions Prator raised in his defense and therefore do not warrant a new trial. See State v. McNichols, 188 Kan. 582, 588–90, 363 P.2d 467 (1961) (refusing to grant a defendant a new trial after jurors looked up the definition of “culpable” in dictionaries to understand the term “culpable negligence” because the jury found the defendant guilty under a theory that did require it to find him guilty of culpable negligence); see also United States v. Williams–Davis, 90 F.3d 490, 502–03 (D.C.Cir.1996) (refusing to grant a new trial where the jury looked up the definition of a word that had no legal relevance to the findings necessary for the charges on which it convicted); Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 924–26 (10th Cir.1992) (considering the importance of the word being defined to the resolution of the case as a factor for deciding if the jury's unauthorized use of a dictionary warranted a new trial); United States v. Gunter, 546 F.2d 861, 869 (10th Cir.1976) (finding that jury's use of a dictionary to define a word tangential to theft charges against the defendant was harmless).
At trial, the parties never discussed whether the gift cards and the items Prator purchased with the gift cards were property. The parties did discuss whether Prator obtained unauthorized control over the gift cards or used them for the purpose of obtaining property, but not as a material issue for the jury to decide. Prator admitted twice at trial that he obtained control over the gift cards, and footage from the surveillance video showed Prator obtaining a cart full of goods at Bed Bath and Beyond. The State has demonstrated beyond a reasonable doubt that the jurors' misconduct did not affect the verdict.
II. The District Court Did Not Err When It Refused to Give an Instruction for Theft of Lost or Mislaid Property.
At trial, Prator asked that the court give a jury instruction on theft of lost or mislaid property as a lesser-included offense of the felony-theft charge. The district court denied the request, finding no evidence that Prator knew or learned who owned the gift cards as required under K.S.A.2011 Supp. 21–3802, the statute defining theft of lost or mislaid property. It provides that theft of property lost, mislaid, or delivered by mistake is:
“(a) ... [O]btaining control of property of another by a person who:
(1) Knows or learns the identity of the owner thereof,
(2) fails to take reasonable measures to restore to the owner lost property, mislaid property or property delivered by a mistake; and
(3) intends to permanently deprive the owner of the possession, use or benefit of the property.” (Emphasis added.) K.S.A.2011 Supp. 21–5802(a).
On appeal, both parties agree that theft of lost or mislaid property can be a lesser-included offense of felony theft. See K.S.A.2011 Supp. 21–5109(b) ; State v. Getz, 250 Kan. 560, 566, 830 P.2d 5 (1992) ; cf. State v. Hunter, No. 109,078, 2014 WL 274462, at *2–3 (Kan.App.2014) (unpublished opinion) (concluding that lost or mislaid property is not a lesser-included offense of misdemeanor theft), petition for rev. filed February 14, 2014. Because the district court refused to give a lesser-included-offense instruction, we must determine whether there was sufficient evidence to support the requested instruction, viewed in the light most favorable to the party who requested it. State v. Harris, 293 Kan. 798, 803, 269 P.3d 820 (2012). The district court had a duty to instruct the jury on the lesser-included offense if it could be established by the evidence—even weak or inconclusive evidence. But it was not required to instruct on the offense if the jury could not have reasonably convicted the defendant of it based on the evidence presented. 293 Kan. at 803.
In this case, the evidence indicated that Prator did not know who owned the gift cards when they came into his possession:
“[State:] When you found those gift cards on the floor, were you aware they belonged to Mrs. Christy?
“[Prator:] No.
“[State:] Have any idea who they belonged to?
“[Prator:] I had no idea. There were so many ... people in and out of there.
“[State:] At the time did you know Mrs. Christy was the lawful owner? “[Prator:] I did not.”
Prator's comments are similar to those the defendant made in State v. Colbert, 221 Kan. 203, 207, 557 P.2d 1235 (1976). In that case, the Kansas Supreme Court found that the trial court did not err in denying a defendant's request for an instruction on theft of lost or mislaid property because the defendant's testimony at trial negated the element requiring that the defendant know or learn the identity of the owner of the property. 221 Kan. at 207 (“ ‘I did not know whose wallet it was.’ ”); see also State v. Johnson, No. 109,137, 2014 WL 1795846, at *2–3 (Kan.App.2014) (unpublished opinion) (“ ‘I didn't know who the owner was.’ ”), petition for rev. filed May 30, 2014. Both Colbert and Johnson support a conclusion that there was not sufficient evidence for the jury to convict Prator of theft of lost or mislaid property.
But Prator raises an additional argument not discussed in those cases. He contends that the district court should have given the lesser-included instruction because he presented evidence at trial that he learned who owned the gift cards when the police told him Christy was the owner of the gift cards:
“[State:] [Did you e]ventually learn that [Christy was the lawful owner of the gift cards] from your contacts with the Wichita State University Police Department?
“[Prator:] Yes, I did.”
On appeal, Prator notes that K.S.A.2011 Supp. 21–5802(a)(1) does not specify when the defendant must “[k]now[ ] or learn[ ] the identity of the owner.”
Prator's argument might have some validity if the State had charged him with theft by failing to return the gift cards to Christy after speaking with the police. But in this case, the State charged Prator with theft by permanently depriving Christy of the gift cards on or about February 11, 2012. The State clearly alleged at trial that Prator had committed theft by taking gift cards out of Christy's purse during the graduation ceremony. By his own testimony, Prator did not know at that time who owned the gift cards. Thus, the alleged theft had already been completed when he learned they were Christy's gift cards. In addition, of course, Prator used the cards the following day, well before police told him who owned them. Because the alleged theft had been completed long before Prator learned that Christy owned the gift cards, there would not have been sufficient evidence that he knew or learned who owned the property to convict him of theft of lost or mislaid property. The district court did not err in refusing to give a lesser-included-offense jury instruction.
III. Prator's Sentence Did Not Violate His Right to a Jury Trial.
Prator raises one additional argument: that the use of his criminal history to calculate his guidelines sentence was unconstitutional since his past convictions weren't proved in this case to a jury. Prator indicates that he has raised it on appeal to us merely to preserve the issue for federal review. As Prator recognizes, our Supreme Court has rejected that argument. See State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013) ; State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002).
We affirm the district court's judgment.