Statute prohibiting possession of theft detection device remover requires showing of particular tool or device

Jennifer C. Roth won in State v. Justice-Puett, No. 119,697 (Kan. App. September 13, 2019), obtaining reversal of a Riley County possession of a theft-detection device remover conviction. Ms. Justice-Puett was alleged to have removed a security detection device from some cell phone screen protectors. But the state did not provide any evidence of what Ms. Justice-Puett used to do so. Ms. Justice-Puett argued that, as charged, the statute required proof of a tool or device specifically designed to remove theft detection devices. The COA agreed:   

This court concludes that K.S.A. 2018 Supp. 21-5805(c) is plain and unambiguous in prohibiting the possession of any object intentionally designed to allow removal of theft detection devices with the intent to do so without the permission of the merchant or person owning or holding such merchandise. Examples of such an object would be the Q4 and S3 demagnetizing tools possessed by the store employees, or black market versions of them. The intent requirement of the statute differentiates store employees, who legally carry such tools, from shoppers, who would presumably have no business carrying their own demagnetizer in a retail store. Under this plain reading, criminal intent can be inferred from possession. While K.S.A. 2018 Supp. 21-5805(c) may contain a superfluous word, the legislative intent is clear. It is to prohibit would be shoplifters from possessing specifically designed tools of the trade.

Using this interpretation of the statute, the COA held that the state failed to provide evidence that Ms. Justice-Puett possessed any such device and, therefore, reversed the conviction.

[Update: the state did not file a PR and the mandate issued on October 21, 2019.]