Facts
- A K-Mart security officer observed Glenn Lee Saylor repeatedly move items through the store, including trips to the hardware department where he was briefly out of view.
- The officer saw Saylor use a bottle of glue and return it to a counter.
- After Saylor left following a minor purchase, the officer found a toy chest box in the hardware department that had been resealed with glue.
- Saylor later returned, retrieved the box, and went to the checkout line.
- At checkout, Saylor paid for two items, including a plastic pig toy chest priced at $13.97; the cashier processed the purchase without suspecting any problem.
- After Saylor exited, he was arrested; the box contained assorted merchandise (including chain saws and staple guns) valued at more than $500.
- Saylor was convicted in district court of theft by deception under K.S.A. 1979 Supp. 21-3701(b).
- The Kansas Court of Appeals reversed and ordered a new trial on attempted theft by deception; the Kansas Supreme Court granted review.
Issues
- Whether theft by deception under K.S.A. 1979 Supp. 21-3701(b) requires proof that the person in control of the property relied on the defendant’s false representation, and whether suspicion by store security defeats reliance.
- Whether evidence that could support theft by unauthorized control under K.S.A. 21-3701(a) prevents conviction under K.S.A. 21-3701(b) for theft by deception.
- Whether, under the consolidated theft statute, the State may charge alternative theft theories when uncertain which subsection the evidence at trial will establish.
Decision
- The Kansas Supreme Court reversed the Court of Appeals and affirmed the district court’s theft-by-deception conviction.
- Reliance was sufficiently shown because the cashier relied on Saylor’s representation about the box’s contents and permitted him to take the box outside the store, even though security personnel suspected theft.
- The Court stated that concealing store property in a box or receptacle in a self-service store, with criminal intent, constitutes theft under K.S.A. 21-3701(a).
- The Court held that when the prosecutor is uncertain what the evidence will show, the proper procedure is to charge theft in the alternative under potentially applicable subsections of the consolidated theft statute.
Legal Principles
- For theft by deception under K.S.A. 1979 Supp. 21-3701(b), reliance is established if the employee who authorizes the transfer of control (such as a cashier) is deceived and allows the property to leave the store, even if other store employees suspect wrongdoing.
- In a self-service store, concealment of store property on one’s person or within a box or receptacle, coupled with the required criminal intent, constitutes theft by unauthorized control under K.S.A. 21-3701(a).
- Kansas’s consolidated theft statute permits charging alternative theft theories when the evidence may support more than one subsection; proof fitting one subsection does not bar conviction under another if its elements are proved.
Conclusion
The Kansas Supreme Court held that theft by deception was completed when the cashier, acting for the store, relied on the defendant’s misrepresentation about the box’s contents and allowed him to take control of the concealed merchandise, and it approved charging theft theories in the alternative under Kansas’s consolidated theft statute when trial proof is uncertain.