Opinion
No. 107,872.
2013-05-24
STATE of Kansas, Appellee, v. Jodie LABORDE, Appellant.
Appeal from Clay District Court; Paul E. Miller, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Clay District Court; Paul E. Miller, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jodie Laborde appeals her conviction of felony theft. She asserts that the State failed to present any evidence at trial that she committed felony theft by deception, the crime for which she was charged. However, the jury instruction setting forth the elements of the theft charge did not require the jury to find that Laborde obtained control of property by deception, but only that she obtained or exerted unauthorized control of property. The evidence presented by the State was sufficient to satisfy the elements presented in the jury instruction as given.
For the reasons hereinafter set forth, we affirm the conviction.
Facts
On January 11, 2011, the State filed a one-count complaint alleging that Laborde committed felony theft by deception in violation of K.S.A. 21–3701(a)(2) by disposing of personal property and military gear left at her home by her boyfriend.
Despite the specific nature of the charge, the preliminary hearing and the trial focused on whether Laborde had committed theft by another means, i.e., by obtaining or exerting unauthorized control over property, which would be in violation of K.S.A. 21–3701(a)(1). At the conclusion of the preliminary hearing, neither the State nor Laborde argued whether the evidence demonstrated theft by deception. The district court ruled that there was probable cause to believe that Laborde had committed felony theft, but it did not address the element of deception.
The State twice amended its complaint, retaining the charge of theft by deception, and the district court arraigned Laborde on the charge of theft by deception. Laborde never filed a bill of particulars or made any pretrial challenge regarding the State's complaint.
Throughout the trial, neither the State nor Laborde focused on whether Laborde had obtained Price's military gear by deception. The State elicited substantial evidence that Laborde had obtained or exerted unauthorized control over the military gear, including conflicting stories regarding what Laborde did with the property, which Harry Price had left at her home, and whether she had given it away or sold it. The only suggestion of deception was whether Laborde lied to Price and to investigators about what she had done with the gear after taking control of it.
After the trial testimony was completed, the court and the parties held a brief discussion of proposed jury instructions, and both the prosecutor and Laborde's counsel confirmed that they were satisfied with the court's proposed instructions. Consistent with PIK Crim.3d 59.01, the court gave the following Jury Instruction No. 3:
“The defendant is charged with the crime of theft of property of the value of at least $1,000 but less than $25,000. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the U.S. Army was the owner of the property;
“2. That the defendant obtained or exerted unauthorized control over the property;
“3. That the defendant intended to deprive the U.S. Army permanently of the use or benefit of the property;
“4. That the value of the property was at least $1,000 but less than $25,000; and
“5. That this act occurred on or about the 8th day of December, 2010, in Clay County, Kansas.” (Emphasis added.)
The instruction as given was essentially identical with the elements instruction which Laborde had requested in writing, except that Laborde had proposed that Price was the owner of the property instead of the U.S. Army.
Neither the State nor Laborde discussed in closing arguments whether there was any evidence that she had obtained control of the military gear by deception.
The jury convicted Laborde of felony theft; the journal entries of trial and sentencing both specify conviction under K.S.A. 21–3701(a)(2), theft by deception, rather than under K.S.A. 21–3701(a)(l). Laborde filed no motion to correct the journal entries, nor did she file a timely motion for arrest of judgment.
The district court placed Laborde on probation for 12 months, with an underlying 7–month prison sentence. Laborde timely appeals.
Sufficiency of Evidence
Standard of Review
When the sufficiency of evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). Analysis
Laborde readily concedes that the State presented sufficient evidence that she obtained or exerted unauthorized control over Price's military gear. But, she argues the State failed to present any evidence that she obtained the gear by deception, as required by the State's complaint. Therefore, Laborde contends her conviction must be reversed.
In rebuttal, the State argues that Laborde committed a host of deceptive acts in her efforts to mislead Price and law enforcement officers about what she did to Price's military gear and where it could be found. Although the State's argument appears to miss the mark, there was substantial evidence that Laborde obtained or exerted unauthorized control over the military gear.
K.S.A. 21–3701(a) is the starting point for Laborde's argument. K.S.A. 21–3701 states:
“(a) Theft is any of the following acts done with intent to permanently deprive the owner of the possession, use or benefit of the owner's property or services:
(1) Obtaining or exerting unauthorized control over property or services;
(2) obtaining control over property or services, by deception.”
Thus, theft by deception requires three essential elements: 1) Someone other than the defendant owned the property, (2) the defendant obtained control of the property by means of deception, and (3) the defendant intended to permanently deprive the owner of the use or benefit of the property. State v. Wilson, 35 Kan.App.2d 333, 341, 130 P.3d 139 (2006).
More specifically, the second element of this crime, which is critical to this appeal, necessitates that “the defendant with the required intent obtained control over another's property by means of a false statement or representation.” State v. Finch, 223 Kan. 398, 404, 573 P.2d 1048 (1978). Therefore, the State must prove that “the victim was actually deceived and relied in whole or in part upon the false representation.” 223 Kan. at 404. Several other cases have since concluded the same. See State v. Rios, 246 Kan. 517, 526–27, 792 P.2d 1065 (1990) (reversing theft by deception convictions when department store employees used vouchers to cover up their thefts rather than to cause the store to transfer property in reliance on the statement or representation); State v. Saylor, 228 Kan. 498, 500, 618 P.2d 1166 (1980) (reconsidering the rule articulated in Finch and concluding that “it is a correct statement of the law”); State v. Maxon, 32 Kan.App.2d 67, 75, 79 P.3d 202 (2003) (theft by deception necessitates that the defendant's false statement or representation causes the property owner to transfer the property in reliance on the statement or representation), rev. denied 277 Kan. 926 (2004).
In the instant case, Laborde correctly asserts that the jury did not have sufficient evidence to convict her of theft by deception. The State presented no evidence that Price or the U.S. Army transferred Price's military gear to Laborde in reliance on a false statement or representation. Although a host of evidence certainly suggests that Laborde lied about what she had done with the military gear, these lies were all post facto and therefore did not induce Price to transfer his military gear to Laborde. See, e.g., Maxon, 32 Kan.App.2d at 75.
Nonetheless, under a sufficiency-of-the-evidence challenge, Laborde's conviction does not warrant reversal because the jury had sufficient evidence to convict Laborde of felony theft as specified in the jury instruction. Although the State consistently charged Laborde with felony theft by deception in its three criminal complaints, the State's apparent theory of criminal liability at both the preliminary hearing and at trial was that Laborde obtained or exerted unauthorized control over the military gear, thus in violation of K.S.A. 21–3701(a)(1). Accordingly, Jury Instruction No. 3, which was nearly identical to the proposed instruction that Laborde had submitted to the district court, was consistent both with the theft statute and with the evidence. The jury followed these instructions and, with sufficient evidence, convicted Laborde of felony theft committed by obtaining or exerting unauthorized control over the military gear.
Laborde unsuccessfully attempts to support her argument by citing to State v. Robinson, 27 Kan.App.2d 724, 8 P.3d 51 (2000). This effort is to no avail because in Robinson—unlike the instant case—both the State's complaint and the jury instruction were incongruent with the evidence presented against the defendant at trial. More specifically, whereas both the complaint and jury instruction alleged that the defendant took property from the victim's person, the evidence presented at trial only showed that the taking occurred from the victim's presence. Although this deficiency warranted reversal of the defendant's conviction, see 27 Kan.App.2d at 725–29,Robinson does not apply to the instant case because, here, the jury had sufficient evidence to convict Laborde of felony theft committed by obtaining or exerting control over property as specified in Jury Instruction No. 3. Robinson, therefore, is distinguishable from the present case.
Invited Error
Laborde's claim that the evidence was insufficient to convict her of the crime with which she had been specifically charged may have had some merit, but for the fact that she invited any error which occurred by specifically proposing and approving the jury instruction which deleted the element of deception.
It is well established that a criminal defendant may not invite error and then complain of the error on appeal. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011). In State v. Schreiner, 46 Kan.App.2d 778, 788, 264 P.3d 1033 (2011), rev. denied 296 Kan. –––– (February 20, 2013), it was pointed out:
“Jury instructions present a prime instance illustrating the soundness of the invited error rule. See State v. Angelo, 287 Kan. 262, 279–80, 197 P.3d 337 (2008); State v. Hernandez, 44 Kan.App.2d 524, 528, 239 P.3d 103 (2010), pet. for rev. filed October 1, 2010 (pending); State v. McCoy, 34 Kan.App. 185, 189–90, 116 P.3d 48,rev, denied 290 Kan. 988 (2005) (citing cases). The Kansas Supreme court recently restated the rule this way: ‘When defendant's requested instruction is given to the jury, the defendant cannot complain the requested instruction was error on appeal.’ State v. Bailey, 292 Kan. 449, 459, 255 P.3d 19 (2011) .”
In State v. Hargrove, 48 Kan.App.2d 522, 529–55, 293 P.3d 787 (2013), the application of the invited error rule to jury instructions requested by counsel is discussed in extensive detail. In Hargrove, the court determined that the record was insufficient to determine whether the error invited by defense counsel in soliciting and procuring a defective elements instruction resulted from a tactical decision or from inadvertence. Even where tactical advantage is not clear or apparent, an appellate court cannot just conclude that the instruction was submitted due to inadvertence or inattention. “Because the instruction might have been part of Hargrove's defense strategy and the district court honored Hargrove's request it be used, we find that the invited error doctrine precludes direct appellate review premised upon the constitutional defect in the instruction.” 48 Kan.App.2d at 551–52.
Here, Laborde's defense was essentially that no theft had even occurred. Neither the State nor Laborde relied upon evidence of deception, nor were any arguments made regarding this element. The record does not clearly compel the conclusion that the instruction was submitted due to inattention or inadvertence rather than being a calculated part of the defense strategy. Thus, further review is precluded.
The jury, as instructed, was not required to find that Laborde obtained control of the property by deception. The evidence supports each element which the jury was required to find, and, accordingly, Laborde's conviction must stand.
Affirmed.