Friday, April 15, 2011

Consumer dispute not theft by deception

Lydia Krebs won in State v. Hulsey, No. 103,302 (Kan. App. April 8, 2011)(unpublished), obtaining a reversal of a Johnson County felony theft conviction. The circumstances of the case involved a contract to build an in-ground pool and pool house:

We agree with Hulsey that the evidence was insufficient to establish that he obtained control over Cowick's property through a false statement or representation that he had obtained the necessary permits for the project. Cowick admitted Hulsey never explicitly stated he had obtained the permits, outside the contractual promise to do so. The contract did not require Hulsey to obtain the necessary permits and licenses before beginning construction and the evidence indicated he could have obtained the permits anytime before construction, was completed. The contract required Cowick to pay Hulsey $49,000 after the foundation was completed. There is no question that the foundation was completed on April 24, 2007, so Hulsey was entitled to receive a payment from Cowick on that date. Although Hulsey may have breached a future promise to perform under the contract, he made no misrepresentations about present or past existing facts.

In this case, the State exercised its discretion to prosecute Hulsey for a felony offense under the Kansas Criminal Code. It appears that the dispute may have also been governed by the Kansas Consumer Protection Act (KCPA). Although the criminal code is strictly construed in favor of the accused, the KCPA is liberally construed to
protect consumers from suppliers who commit deceptive acts and practices. [T]he definition of “deceptive acts and practices” is much broader than the definition of “deception” under the criminal code. Whereas a criminal charge must be proven beyond a reasonable doubt, a KCPA claim must only be proven by a preponderance of the evidence.

We are mindful of our obligation to review the evidence in the light most favorable to the prosecution. Even applying this standard, we conclude the evidence presented at trial was insufficient to convince a rational factfinder of Hulsey's guilt beyond a reasonable doubt. Hulsey's conviction of theft by deception is reversed and his sentence is vacated.
This is a nice description (and application) of the difference between criminal fraud and consumer protection.

[Update: the state file a PR on May 9, 2011.]

[Further update: the KSC denied the state's PR and the mandate issued October 7, 2011.]

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