Criminal deprivation not a lesser of theft

Nathan Webb and Carl Folsom won in State v. McKissack, No. 93, 670 (Kan. April 27, 2007), reversing Sedgwick County burglary and criminal deprivation convictions. Mr. McKissack was charged with vehicular burglary based on intent to take a stereo. But there was ample evidence that he was just engaged in a prank and did not intend to permanently deprive. The district court gave an instruction for criminal deprivation as a lesser of theft. During deliberations, the jury asked for clarification of whether burglary could be based on criminal deprivation (which it cannot). The district court did not clarify, but referred the jury to the instructions. The jury convicted of burglary and criminal deprivation and acquitted of theft.

The KSC reversed some older precedent holding that under the strict elements test, criminal deprivation is not a lesser of theft. As a result, the district court lacked jurisdiction to convict of criminal deprivation. And because the instructions were not clear, the court also reversed the burglary conviction:

Under these unique circumstances, there is a real possibility that the jury based its conviction of burglary not on other evidence produced at trial but rather upon defendant's conviction of criminal deprivation of property. We therefore reverse defendant's burglary conviction, not on the basis of inconsistent verdicts or sufficiency of evidence, but rather on the basis that we have no confidence in the guilty verdict rendered in light of the jury's question to the trial court during its deliberations and the erroneous instructions by the trial court.

A nice result--I would be glad to see this type of clear error analysis applied in other cases, especially where juries ask questions.