Opinion
110,674.
11-07-2014
STATE of Kansas, Appellee, v. Daniel DAVIS, Appellant.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Daniel Davis was on probation for burglary and theft. A few days after his sentencing, Roy Thieding responded to a Craigslist advertisement and bought a rototiller from Davis. But the rototiller's owner—Davis' employer—later alleged that Davis lacked authority to either sell the rototiller or pocket the proceeds. Because this act constituted a theft, Davis was arrested for violating his probation. After an evidentiary hearing, the district court determined that Davis violated the terms of his probation by committing a new theft and ordered that Davis serve his underlying sentences. Davis appeals. Because we find there was substantial evidence to support the district court's finding that Davis committed a new theft and because it did not abuse its discretion in subsequently revoking his probation, we affirm.
Factual and procedural History
In April 2013, Davis pleaded no contest to one count of burglary and one count of theft; in exchange, the State agreed to dismiss two other charges, recommend certain sentences, and not file any charges in two other pending matters. The factual basis underlying the pleas provided in part that Davis illicitly obtained a number of writing pens from their owner and listed them for sale on eBay. The district court accepted Davis' pleas and found him guilty of both theft and burglary. On June 27, 2013, the district court sentenced Davis to 24 months' probation with a total underlying term of 19 months' imprisonment—13 months for the burglary and 6 months for the theft, running consecutively.
However, on July 10, 2013, the district court issued a warrant for Davis' arrest due to an alleged probation violation. According to the warrant, Davis violated his probation by committing a theft on June 30, 2013—3 days after his sentencing. A second warrant was later issued, alleging that Davis also committed a theft on July 1, 2013. However, because the district court eventually found that the State failed to meet its burden in proving the July 1 theft, this appeal only concerns the theft underlying the original warrant.
The district court held an evidentiary hearing in September 2013. The State first called Thieding. Thieding explained that he had recently purchased a Yanmar-brand rototiller from Davis after finding it listed on Craigslist. Thieding saw the listing, called the number attached to the listing, and arranged to meet Davis on a Sunday afternoon. Davis arrived a few minutes late, and at some point, they moved to where the rototiller was located: namely, “a yard with a fenced-in lock.” Although Thieding could not recall the name on the Craigslist listing, he recalled that the price was “$1,000 or best offer.” They agreed to a $450 purchase price.
Thieding testified that Davis asked to be paid in cash and was hesitant to accept a personal check. However, when Thieding said that “[he] would not buy it that day unless [Davis] would take a check,” Davis obliged and told Thieding to make the check payable to himself (Davis). Thieding further testified that he believed that Davis owned the rototiller and that nothing about their interaction caused him concern. Accordingly, he wrote a check to Davis for the agreed-upon amount.
About a week later, Thieding returned to Craigslist and discovered a second listing featuring “a picture of the exact same rototiller” as the one he purchased. The listing requested that “if anyone recognized the picture of this tiller, would he please contact” the lister, who claimed to be the rototiller's owner. Thieding called the number provided and agreed to meet about the rototiller. Although Thieding could not recall whether the phone numbers on the two listings were different, he testified that he “suspected that they were” because he talked to someone other than Davis when he called the second time. Thieding, who at that point “felt like [the rototiller] may have been a hot item,” met with the man from the second listing—Dennis Wilkie—to discuss the sale and ownership of the rototiller. After their discussion, Wilkie agreed to sign a bill of sale for the rototiller in exchange for a copy of the check that Thieding wrote to Davis.
Next, Wilkie testified. Wilkie explained that his family “owns and operates a couple small businesses,” including a wedding chapel and a business that liquidates various machinery and equipment. Wilkie testified that he and Davis first became acquainted when Davis responded to a temporary employment advertisement on Craigslist. Davis worked for him off and on for approximately 7 or 8 months.
Although Wilkie originally hired Davis to help clean up a warehouse, he continued hiring Davis for other jobs, “trying to find a niche where he would fit in best” because “[h]e seemed real ambitious, educated, and a hard worker.” Eventually, Davis' role shifted to a marketing position in which he took photographs and listed certain items on Craigslist as part of Wilkie's liquidation business. However, Davis was only permitted to list certain items, not simply “anything he saw at [the] warehouse.”
Davis earned commission for the Craigslist sales but hourly payment for other tasks. Wilkie admitted that he likely owed Davis back pay due to some continuing financial issues and that, accordingly, “there wasn't a pay period or a payday set in stone or anything.” Instead, Wilkie paid Davis whenever he could, testifying that he was never behind “for a very serious length of time”—more like “a week or two.” Wilkie struggled to clearly explain how frequently he paid Davis, how much money Davis earned, how much back pay he owed to Davis, and what (if any) tax filings he made regarding Davis' employment. Overall, it appeared that Wilkie lacked any solid records indicating how frequently Davis worked, the hours he worked, and the division between his hourly and commission-based wages. However, Wilkie noted that he terminated Davis' employment at the end of June or beginning of July 2013.
Wilkie also testified that Davis may have lent him money at some point and that he thought there “[m]ight very well have been some money owed to” Davis at the time Wilkie ended his employment. Wilkie clarified that if Davis lent him money at any time, it was likely because Davis bought something for Wilkie's business and then proceeded to “pa[y] for it out of his own pocket” before asking Wilkie for reimbursement with a receipt. Wilkie testified that whatever money Davis lent him covered only “minor things” he reimbursed Davis “just within moments or a day.”
In regard to the phone call with Thieding, Wilkie explained that he placed the listing on Craigslist in an attempt to “track down” a missing rototiller because he suspected someone sold it without permission. Wilkie had intended to sell the rototiller eventually but had wanted to “make it a little more presentable” prior to sale. Although Wilkie admitted that Davis contributed to the sale of approximately five other rototillers during his employment, he testified that he never asked Davis to help him prepare this particular rototiller for sale. He did acknowledge that they had probably discussed his plans to sell it while they unloaded a trailer full of farm equipment. However, Wilkie noted that when they discussed the rototiller and other equipment, he specifically did not name an amount for the rototiller because of its poor condition. In conclusion, Wilkie testified that he never gave Davis permission to sell the rototiller or to keep the proceeds, even as back pay.
The State then called Officer Matthew Lang from the Wichita Police Department. Lang explained that he first contacted Davis when dispatched to investigate alleged employee theft. Davis agreed to waive his Miranda rights and answered Lang's questions. Davis “made a general statement that he sells items all the time for Mr. Wilkie” but otherwise told Lang that “he had no knowledge” of the rototiller's sale. Even after viewing a photograph of the rototiller, Davis told Lang he could not recall the sale; shortly thereafter, Davis refused to continue the conversation. Lang explained that after interviewing Davis, he allowed Wilkie to come over and speak to Davis briefly. Lang recalled very little about the men's conversation, testifying that he only remembered Wilkie confronting Davis about the proceeds from the sale. Lang testified that Davis briefly complained to him about the back wages Wilkie owed; however, Lang advised Davis to handle the issue regarding the back pay in civil court.
The State then rested, and Davis testified on his own behalf. Davis confirmed that he worked for Wilkie for approximately 7 or 8 months and discussed the scope of his employment and his hours. Davis claimed that he worked more frequently and sold more equipment than Wilkie had claimed. Davis explained that when Wilkie acquired inexpensive equipment (that is, equipment that would sell for less than $1,000), he and Wilkie would inspect the equipment and discuss possible prices without any real detail. Davis testified that the rototiller fit into this category.
Regarding Wilkie's financial difficulties, Davis testified that Wilkie paid him $1,000 in May but failed to pay him again before terminating his employment. Davis estimated that Wilkie owed him between $4,000 and $6,000 in back pay. Davis further testified that Wilkie authorized the sale of the rototiller and in fact approved the Craigslist listing. But because Wilkie “was never in the habit of accepting checks from anybody,” he had instructed Davis to ask that the checks be made payable to him, at which point Davis would cash the checks and relinquish the proceeds to Wilkie. However, Davis never specifically revealed whether he gave Wilkie the $450 for this particular rototiller.
Davis further testified that Wilkie continued asking him for personal loans up to the point he was fired and that “not loaning him that money kind of made him standoffish for a little while.”
On cross-examination, Davis admitted that his crime of conviction resembled his employment with Wilkie: that is, selling other people's belongings online. However, Davis contended that Wilkie permitted him to sell the rototiller and that he “sold them in broad daylight.” Davis also acknowledged that although he claimed to keep a log of his hours and pay earned from working for Wilkie, he never filed taxes on that income. Regarding the sale of the rototiller, Davis stated that Wilkie simply wanted him to sell that and other farm implements “to get whatever [he] could for it” and that Thieding only offered $450.
At the close of the evidence and argument, the district court determined that a preponderance of the evidence demonstrated that Davis violated his probation by committing a new crime. The district court noted that it never heard any testimony that either: (1) “Mr. Davis had permission to sell the rototiller”; (2) Davis turned the funds from the rototiller sale over to Wilkie; or (3) “[Davis] had permission to pocket the money” from the sale.
In light of this finding, the State requested that the district court revoke Davis' probation and order he serve his underlying sentences. Davis, however, argued that probation continued to be appropriate because of the specific circumstances of his new violation. Davis highlighted the fact that the sale of the rototiller and retention of its proceeds tied into the money Wilkie owed him in back pay. Davis argued that this fact combined with the availability of more intense probation services allowed the district court to find mitigating factors and leave Davis on probation.
The district court, however, disagreed with Davis and determined that “because of the nature of the new crime as alleged in the probation violation warrant ... the defendant has demonstrated that he's not amenable to further probation.” As such, the district court rejected applying sanctions found in House Bill 2170, see K.S.A.2013 Supp. 22–3716(c), and ordered Davis to serve out his underlying sentences without modification. Davis timely appealed.
Analysis
There was substantial evidence to support the district court's finding that Davis committed a new crime.
Davis first contends on appeal that the State failed to meet its burden in proving his probation violation. In order for the district court revoke a defendant's probation, the State must first establish commission of the violation by a preponderance of the evidence. State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006). This burden “is established when the evidence demonstrates a fact is more probably true than not true.” State v. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007), rev. denied2$6 Kan. 1183 (2008). Moreover, appellate review of a factual determination is generally governed by the substantial evidence standard. 38 Kan.App.2d at 315. Substantial evidence is such legal and relevant evidence that a reasonable person might accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
In the state of Kansas, an individual commits theft when he or she commits any of five specific acts “with intent to permanently deprive the owner of the possession, use or benefit of the owner's property or services.” K.S.A.2013 Supp. 21–5801(a). In the present case, the act appears to be Davis' “[o]btaining or exerting unauthorized control over property or services”—namely, the rototiller (and, by extension, the proceeds from the rototiller's sale). K.S.A.2013 Supp. 21–5801(a)(l). However, Davis argues that the State failed to prove the essential element of his intent and that, without such proof, the probation violation cannot stand. In constructing this argument, Davis emphasizes the conflicting testimony, his history of selling items for Wilkie, and his belief that Wilkie authorized the sale.
Davis is correct that “the intent to permanently deprive the owner of possession is an essential element of the crime of theft.” State v. Hall, 246 Kan. 728, 747, 793 P.2d 737 (1990), overruled on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). But Davis also fails to recognize the long-standing Kansas precedent that a conviction of even the gravest offense can be based on circumstantial evidence. State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). As long as the evidence in question provides a basis from which the factfinder may reasonably infer the existence of the fact in issue, a verdict may be supported by circumstantial evidence. State v. Scaife, 286 Kan. 614, 618–19, 186 P.3d 755 (2008).
Specifically regarding theft, our Supreme Court has held that “[t]he State is not required to show intent by direct proof.” State v. Mitchell, 262 Kan. 434, 439, 939 P.3d 879 (1997). In that case, the court determined that the defendant's act of “[t]aking someone's car without permission and without evidence of an affirmative intent to return it are circumstances which reasonably give rise to inferences of an intent to permanently deprive,” 262 Kan. at 439. In another case, despite the defendant's testimony that “he never intended to keep the bike,” our Supreme Court determined that the facts presented at trial—namely, that the defendant asked to test ride a bicycle at a bicycle shop before riding off on it and that the bicycle was recovered with “a new stem which better fit defendant's size and ... other modifications”—constituted “abundant evidence” of the defendant's intent. State v. Freitag, 247 Kan. 499, 500, 503, 802 P.2d 502 (1990).
Here, Davis essentially argues that he lacked the intent to permanently deprive Wilkie of the rototiller because Wilkie permitted him to sell the rototiller. But the circumstances of the sale itself demonstrate otherwise. Davis listed the rototiller at $1,000 but sold it for a price far below that. He denied all knowledge of the sale when Lang questioned him about it. Meanwhile, Wilkie attempted to locate the rototiller through a Craigslist advertisement because he suspected someone had sold it without his permission. And in direct conflict with Davis' claims, Wilkie specifically testified that he never authorized Davis to sell the rototiller and that he purposely did not name a price for that piece of equipment because he wanted to work on it prior to listing it for sale. These circumstances clearly support the conclusion that Wilkie never authorized the sale and that Davis intended to permanently deprive him of the rototiller.
But perhaps more importantly, Wilkie testified he never allowed Davis to keep the proceeds from the sale. The check, as Thieding testified, was good. But despite Davis' insistence that Wilkie authorized the sale and directed personal checks to be made to Davis rather than Wilkie, Davis never explained what happened to the proceeds. Even if Davis believed himself to be authorized to sell the rototiller, the fact that he never turned the proceeds over to Wilkie demonstrated his intent.
On appeal, this court generally will not reweigh the evidence or witness credibility. See State v. Hall, 292 Kan. 841, 859, 257 P .3d 272 (2011). The district court clearly found Thieding, Wilkie, and Lang to be more credible than Davis. Moreover, the district court only needed to find that Davis committed a theft by a preponderance of the evidence, which is a low standard. Even though his intent was supported only by circumstantial evidence, it was substantial and competent enough to support the conclusion that Davis committed a theft. Accordingly, the district court did not err in finding that Davis violated his probation.
The district court did not abuse its discretion in revoking Davis' probation.
Davis next argues that the district court abused its discretion by ordering him to serve his underlying sentences instead of finding mitigating circumstances and allowing him to remain on probation.
Unless required by law, probation is a privilege and not a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once there is evidence of a probation violation, revocation of that probation is in the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). An abuse of discretion only occurs when a judicial action is arbitrary, fanciful, or unreasonable, based on an error of law, or based on an error of fact. Ward, 292 Kan. at 550.
Davis contends that mitigating circumstances outweigh the probation violation and demonstrate that the district court erred in revoking his probation. Specifically, Davis argues the district court failed to seriously consider his claims that the sale of the rototiller constituted a simple misunderstanding between himself and Wilkie. He also argues that he only retained the proceeds because Wilkie owed him money.
But neither explanation justifies Davis' probation violation. Davis committed a new theft mere days after being sentenced to probation on other theft-related charges. The facts underlying the new theft closely resembled those underlying one of his crimes of conviction—a similarity that Davis himself recognizes. Even if Davis sold the rototiller believing he had authority to do so, that still does not explain why he did not turn the proceeds over to Wilkie. Moreover, Davis provides no authority suggesting that the unauthorized sale of an individual's property and retention of the proceeds from that sale is an acceptable way to recoup wages owed to him by the owner.
We do not find that the district court's decision to revoke Davis' probation was arbitrary, fanciful, or unreasonable. Therefore, the district court did not abuse its discretion by revoking Davis' probation and ordering him to serve the underlying prison sentences.
Affirmed.