No evidence of theft by deception

Washburn student intern Wes Weber and I won in State v. Boor, No. 112,539 (Kan. App. January 8, 2016)(unpublished), reversing a Sedgwick County theft conviction. Ms. Boor had been charged with theft by deception, but because Ms. Boor worked for the purported victim business as a bookkeeper, the COA agreed that the evidence could not support a conviction for theft under the charged theory:

Here, there was similarly no deception in Boor obtaining her position as bookkeeper. Instead, when viewed through the lens of [State v. Rios, 246 Kan. 517, 792 P.2d 1065 (1990)] analogy, Boor was the fox who the farmer hired to run the chicken house. Once employed as a bookkeeper, Boor used her position to steal money from SMG (when viewing the facts of this case in the light most favorable to the State), just as the fox used its position to steal the eggs. This is embezzlement.

Because the state did not present evidence to support the charged crime, the COA reversed the conviction.

[Update: the state did not file a PR and the mandate issued on February 18, 2016.]