Opinion
No. 111755.
08-14-2015
STATE of Kansas, Appellee, v. Jason SMITH, Appellant.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Gunning, 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 BRUNS, P.J., HILL and ARNOLD–BURGER, JJ.
PER CURIAM.
Jason Smith contends that the State failed to present sufficient evidence that he never intended to buy a car for Robert Rusher when Rusher gave him $1,000 as a down payment. Circumstantial evidence leads us to conclude otherwise. Therefore, we affirm Smith's conviction for theft by deception in violation of K.S.A.2014 Supp. 21–5801(a)(2),(b)(3).
In November 2011, Rusher was looking for a new car after he had wrecked his old one. He visited Prestige Motors and met Smith there. Rusher went by the lot about six times in approximately 1 month looking for a suitable car. He never found one that quite fit his desires.
At that point, Smith offered to look for an SUV for Rusher at an off-site auction. Smith said he went to car auctions every Friday night to purchase vehicles for his lot. Smith said Rusher could give him money for a down payment on an SUV Smith would purchase at the auction. During the week of November 17, 2011, Smith showed Rusher pictures of some of the SUVs available at that week's auction. Rusher gave Smith a $1,000 cash down payment. Smith was to purchase an SUV for Rusher at the auction that Friday night. Rusher testified he gave Smith cash because Smith asked for cash. Rusher told Smith not to purchase a vehicle for more than $2,500, and Smith agreed to let Rusher make payments on the remaining balance.
Smith gave Rusher a receipt for the cash. A copy of the receipt is not in the record on appeal. Testimony indicated the receipt said it was a “refundable deposit to purchase vehicle.” Rusher asked Smith to put Smith's driving license number on the receipt, which Smith did. Rusher testified that he believed this meant if Smith did not find a vehicle at the auction that Friday night, Smith would give Rusher his deposit back.
Smith said the auction started at 7 p.m. Rusher called Smith around 9 p.m. to ask if Smith had bought a car for him. Smith said he had a couple of vehicles in mind, had paid a down payment on one, but was unable to access the vehicle until the following Monday due to a lien on it. At that point, Rusher felt Smith had broken the promise to purchase and deliver to Rusher a vehicle that night.
Rusher made contact with Smith the following Monday morning. At that point, Smith claimed to be waiting on a mechanic's report. Rusher did not believe Smith and asked for the $1,000 deposit back. Rusher testified Smith indicated the deposit was only refundable for 72 hours. After this conversation, Smith never responded to Rusher.
Rusher said less than 2 weeks after Smith agreed to purchase an SUV for Rusher, the Prestige lot was empty and the building was vacant.
Boyd McPherson, Rusher's attorney, testified Rusher talked with him about getting the deposit back from Smith since Smith had not purchased a vehicle on Rusher's behalf. McPherson spoke with Smith on three occasions; once on November 28 and twice on November 29, 2011. On November 28, 2011, McPherson asked Smith if Rusher could come pick up the deposit from him. Smith said, “[N]ot right now.... [T]omorrow.” McPherson pressed Smith, reminding him that he had been telling Rusher that for a while. Smith told McPherson that Rusher put him in a “jam” by backing out of the deal.
When McPherson called Smith the next day to inquire about picking up the deposit, Smith answered the phone and said, “[G]ood day, sir” and hung up. McPherson called Smith back a few moments later. McPherson identified himself and stated why he was calling. Smith told McPherson to “just serve [Smith] with papers.” McPherson took that to mean Smith “had no problem” with McPherson filing a civil suit. McPherson told Smith he had advised Rusher to file a criminal complaint for payment. Smith indicated he did not know why he was even talking to McPherson since Smith had an attorney. But when asked the name of Smith's attorney, Smith indicated he did not know and hung up on McPherson.
On December 2, 2011, McPherson sent Smith a demand letter via certified mail at Prestige's address, via regular mail, and personally hand delivered a copy to Prestige. McPherson said Smith's car was at Prestige when he hand delivered the letter, but he did not speak to Smith that day. McPherson saw a U–Haul truck and dolly at Prestige, indicating to McPherson that Smith was moving out. The Prestige lot—which was previously full of vehicles for sale—only had Smith's car, the U–Haul truck, and one more car. Neither Smith nor his attorney responded to the letter.
On December 5, 2011, Rusher filed a police report alleging Smith committed theft of the $1,000 he gave Smith as a down payment for an SUV.
The State charged Smith with theft by deception. See K.S.A.2014 Supp. 21–5801(a)(2),(b)(3). The State alleged Smith deceived Rusher into providing Smith a $1,000 cash down payment for the purchase of car that Smith never purchased for Rusher and Smith never refunded the deposit to Rusher either.
There was a bench trial. After the State rested, Smith moved for a directed verdict, arguing the State failed to prove he had the intent to deceive Rusher when he got the deposit from Rusher. At this point, the judge noted the recent change in the statutory definition of “deception.” He delayed ruling so all involved could further research any impact of the new definition.
In its response to Smith's motion, the State relied on this court's interpretation of the new definition of “deception” in State v. Clay–Dominguez,No. 106,704, 2012 WL 4794651, at *5 (Kan.App.2012) (unpublished opinion), rev. denied297 Kan. 1249 (2013), for its argument that deception can be proved by circumstantial evidence.
A few days later, Smith filed a motion in support of a directed verdict. Smith distinguished the facts of his case from the cases the State relied on. Smith also argued the failure to perform a promise does not equate to evidence of theft by deception. Smith relied on caselaw to argue a conviction for theft by deception has never been secured on evidence of a false promise alone.
Ultimately, the court denied Smith's motion for a directed verdict. For his part of the trial, Smith did not testify and presented no other evidence.
The court wrestled with the term “deception.”
After closing arguments and asking questions of counsel but before ruling, the trial judge discussed the challenge of interpreting the new definition of deception:
“And the issue ... is ... from a legal standpoint can the deception itself occur at any point or does it have to occur before the money is exchanged? ...
“But in this situation because of the change when it talks about knowingly creating or reinforcing a false impression, and I guess maybe the question is, is it the State's position that the evidence supports the finding that the defendant knowingly created a false impression before he took the money or does the State belief that that false impression can be—if it occurs any time between the initial contact and when the charges were brought, ... is that all that needs to be shown?”
The State indicated the false impression had to be created at the time the alleged thief takes the money.
The trial judge then held:
“I felt like from the very beginning as the evidence unfolded that this was an effort by [Smith] to mislead Mr. Rusher.... And specifically with regard to the way this transaction came down, that he obtained cash from the victim in the case, that he indicated that he was going to immediately go to the auction and at that auction he was going to purchase the car. I think the Court does have to look at all of the evidence, including the evidence of what occurred afterwards. And it appears to me ... there is the statement that the vehicle was purchased, but then ... was waiting on a mechanic. There was never a vehicle produced and those facts support the idea that this was a misimpression from the very beginning.”
The trial court found Smith guilty of theft and sentenced him to a suspended 5–month term in prison and 12 months' supervised probation. The court also ordered Smith to repay Rusher $1,000.
In this appeal, Smith alleges there was insufficient evidence from which a rational factfinder could conclude that he committed theft by deception.
We follow certain rules when addressing such a question.
The standard of review that applies when sufficiency of the evidence is challenged in a criminal case is well known. After reviewing all the evidence in a light most favorable to the prosecution, the appellate court must be convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983).
According to K.S.A.2014 Supp. 21–5801(a)(2), there are three elements the State must prove to establish the crime of theft by deception:
1. Someone other than the defendant owned the property;
2. the defendant obtained control over the property by means of deception; and
3. the defendant intended to deprive the owner permanently of the use or benefit of the property.
It is important at this point to note the statutory definition of “deception.” It is something more than a broken promise:
“ ‘Deception’ means knowingly creating or reinforcing a false impression, including false impression as to law, value, intention or other state of mind. Deception as to a person's intention to perform a promise shall not be inferred from the fact alone that such person did not subsequently perform the promise.” K.S.A.2014 Supp. 21–5111(e).
Clearly, this definition compels us to look at the circumstances of the transaction that led to the charge filed here.
Here, the trial court found the following circumstantial evidence indicated Smith's deceptive intent when he took Rusher's money:
• Smith demanded cash from Rusher;
• Smith indicated he was going to purchase a car immediately;
• Smith was aware of the circumstances of buying a vehicle at an auto auction, but he did not provide any of the restrictions to Rusher prior to taking his money;
• Smith stated he had purchased a car but was waiting on a mechanic's report;
• Smith never provided a vehicle to Rusher; and
• Smith gave Rusher a series of excuses why he had not given Rusher either a vehicle or returned his $1,000.
While the trial court did consider Smith's failure to perform as one of the circumstances justifying his conviction, it did not convict Smith on that fact alone.
Given our standard of review and the findings above, all supported by substantial competent evidence, we must reject Smith's argument. The State met its burden of proof. We affirm the conviction.
Affirmed.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; John J. Kisner, Jr., judge. Opinion filed August 14, 2015. Affirmed.