Wednesday, February 04, 2009

Must know it's there to knowingly remove it

Reid Nelson won in State v. Davison, No. 99,229 (Kan. App. Jan. 30, 2009), reversing a Shawnee County removal of a theft detection device conviction. The COA quickly dismissed the state's claim that this appeal was moot because of Mr. Davison's death and held that the statute in question requires knowledge of the theft detection device and intent to facilitate theft. Because the instruction given to the jury omitted these elements, (the PIK instructions have since been modified), the COA reversed:
This same rationale compels us to conclude that the term "intentionally" found in K.S.A. 21-3764(d) requires that for a defendant who removes merchandise from a package to be guilty of violating the statute, he or she must have knowledge of the theft detection device, in addition to having the specific intent to facilitate a theft, as interpreted in Armstrong. It is difficult to imagine that one could be guilty of "intentionally removing the device" from merchandise if one does not know the device is on the merchandise or in the package that contains it.

Because the trial court's elements instruction in this case contained no reference to the elements of knowledge and specific intent required by K.S.A. 21-3764(d), Armstrong, and our conclusion above, it was not a correct statement of the law and was erroneous. While not binding on this panel, we note that another panel of this court also found the same unrevised PIK instruction to be erroneous, and we find its reasoning persuasive.
So if you have any of these cases, look carefully at the instructions.

As an aside, it seems interesting that the COA correctly observes that it is difficult to imagine that a person can be guilty of intentionally removing a device if one does not know the device is on the merchandise, but steadfastly asserts that a person does, AS A MATTER OF LAW, knowingly possess and control a controlled substance, even though the amount is too small to use and too small for a chemist to measure. Sorry, just my editorial there.

[Update: the state did not file a PR and the mandate issued on March 5, 2009.]

1 comment:

mjdinkel said...

The non-PIK residual possession instruction ("any amount of a controlled substance is sufficient to sustain a conviction, regardless of whether it is measurable or useable") given in drug cases is verdict directing yet allowed by the appellate courts. It is for the jury to decide when the evidence is "sufficient" to support conviction.