The KSC explained the poof needed to convict of theft:
The facts presented at trial did not prove that Ms. Laborde “obtained control over another's property by means of a false statement or representation.” Rather, the evidence, construed in favor of the State, only showed that Ms. Laborde “exert[ed] unauthorized control over property” (by allegedly using deception to prevent the alleged victim from getting his property back from her possession). This was not sufficient to convict of theft by deception.In relevant part, K.S.A. 21–3701 defines theft:“(a) Theft is any of the following acts done with intent to permanently deprive the owner permanently of the possession, use or benefit of the owner's property:‘(1) Obtaining or exerting unauthorized control over property;‘(2) obtaining by deception control over property;’ ”Theft by deception sets out different elements that the State must prove than theft by unauthorized control. Theft by deception demands a specific kind of proof from the State. The statutory language demonstrates clearly that the legislature intended to require the State to prove that the intended victim “was actually deceived and actually relied upon the false representation in order for the defendant to be found guilty of theft by deception.” State v. Finch, 223 Kan. 398, 402, 573 P.2d 1048 (1978). The statutory phrase “by deception” indicates an agency or instrumentality as a causative factor. The State must prove that the defendant “obtained control over another's property by means of a false statement or representation.” 223 Kan. at 404, 573 P.2d 1048.
In this peculiar case, the State brought charges against the defendant asserting elements under one statutory theory of theft [theft by deception], but the jury convicted the defendant under instructions setting out a different theory of theft [theft by unauthorized control]. The Court of Appeals found that the conviction was the result of error invited by both parties and affirmed on that basis. We conclude, however, that the parties never raised on appeal the discrepancy between the charge and the instruction and the case must be analyzed on the terms that the parties argued it, as a matter solely of sufficiency of the evidence. Considered from that perspective, we disagree with the conclusion that the Court of Appeals reached and reverse. [(brackets added by blogger)].Thus, the KSC held that the sufficiency of the evidence claim was measured by the crime charged in the complaint or information and not necessary the language in the instruction that went to the jury.