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State v. McKeighan

Court of Appeals of Kansas.
Feb 1, 2013
293 P.3d 815 (Kan. Ct. App. 2013)

Opinion

No. 106,462.

2013-02-1

STATE of Kansas, Appellee, v. Brian McKEIGHAN, Appellant.

Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.

MEMORANDUM OPINION


PER CURIAM.

Brian McKeighan was convicted by a jury of theft and unlawful removal of a theft detection device. On appeal, the sole issue presented is whether there was sufficient evidence to support McKeighan's conviction for unlawful removal of a theft detection device. Because we find that there was sufficient evidence, we affirm.

On November 18, 2009, McKeighan went to Wal–Mart, where he used a knife to cut open a package that had theft detection devices on both the inside and outside. A Wal–Mart employee witnessed McKeighan open the package, remove a bottle of cologne, conceal the bottle in his pants, discard the package, and exit the store without paying for the cologne. When confronted by Wal–Mart employees outside the store, McKeighan handed one of them the bottle he had stolen.

McKeighan was arrested and charged with one felony count of unlawful removal of a theft detection device and one count of misdemeanor theft. After hearing the evidence, the jury found McKeighan guilty of both counts. At sentencing, the district court denied McKeighan's motion for a new trial and sentenced him to 6 months' imprisonment.

On appeal, McKeighan challenges his conviction for unlawful removal of a theft detection device. He argues there was insufficient evidence to support the conviction. Specifically, McKeighan argues there was no evidence that he removed a theft detection device. We disagree.

When the sufficiency of evidence is challenged in a criminal case, we review the evidence in a light most favorable to the prosecution to determine 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). “Unlawful removal of a theft detection device is intentionally removing the device from merchandise prior to purchase.” K.S.A. 21–3764(d). Thus, we must determine whether there is sufficient evidence in the record upon which the jury could have concluded that McKeighan intentionally removed a theft detection device.

Regarding the definition of “removal” in K.S.A. 21–3764(d) the Kansas Supreme Court has stated:

“The ordinary meaning of ‘removal’ is commonly understood to be movement that puts space between two things or relocates one thing from one place to another. See Webster's II New Riverside University Dictionary 995 (1988) (‘removal’ defined as ‘act of removing,’ ‘fact of having been removed’; ‘remove’ defined as ‘to move from a position occupied,’ ‘to convey from one place to another,’ ‘to take away’). Mere impairment or damage that does not cause a loss of physical contact between the theft detection device and the merchandise or change the position of the device from a place on the merchandise to a place not on it is not covered by the subsection in question.” State v. Armstrong, 276 Kan. 819, 824, 80 P.3d 378 (2003).

When considering the constitutionality of K.S.A. 21–3764(d) in Armstrong, the Kansas Supreme Court used an example of a shopper who removes one pair of socks from a package protected by a theft detection device. 276 Kan. at 826. It was stated that such an act would be illegal under the statute if it were done with criminal intent and not simply with the intent to check the size before purchasing the item. 276 Kan. at 826–28.

Here, there is ample evidence in the record upon which a reasonable person could conclude that McKeighan unlawfully removed the theft detection devices with the intent to steal the cologne inside the package. At the very least, McKeighan put space between the cologne and the theft detection devices when he opened the package with a knife, stuck its contents in his pants, and discarded the package. Accordingly, we find that there was sufficient evidence on which a rational factfinder could have concluded that McKeighan was guilty beyond a reasonable doubt of unlawful removal of a theft detection device.

Affirmed.


Summaries of

State v. McKeighan

Court of Appeals of Kansas.
Feb 1, 2013
293 P.3d 815 (Kan. Ct. App. 2013)
Case details for

State v. McKeighan

Case Details

Full title:STATE of Kansas, Appellee, v. Brian McKEIGHAN, Appellant.

Court:Court of Appeals of Kansas.

Date published: Feb 1, 2013

Citations

293 P.3d 815 (Kan. Ct. App. 2013)