Washburn student intern Brian Yearout and I won in State v. Ricke, No. 113,852 (Kan. App. September 9, 2016)(unpublished), reversing a Douglas County theft by deception conviction. The state had charged Ms. Ricke, an employee of a rental management company with theft by deception related to collection checks that were improperly deposited into property owner's accounts. The state alleged that Ms. Ricke then diverted rent payments for personal use.
The state initially charged Ms. Ricke with theft by obtaining unauthorized control over property. But after preliminary hearing, the state amended the charge to theft by deception. Both at trial and on appeal, Ms. Ricke argued that, even if state proved the scheme it alleged, it failed to prove theft by deception. The COA rejected the state's arguments that amended complaint was merely a mistake and/or that it was not authorized. Instead, the COA, citing recent KSC precedent (blogged about here) held that the amendment was effective and that, as a result, the state failed to prove the crime it charged:
Our review of the record in this case shows no evidence that Ricke obtained control over Gage Management's property by means of a false statement or representation, thus the second element of theft by deception is not met. No evidence suggests that Ricke obtained by any falsehood either her initial employment with Gage Management or her position in 2007 or 2008 which granted her access to the funds which she diverted. Nor does the evidence show that Ricke obtained control over Gage Management's property by means of any false statement or representation on a case-by-case basis when using her position to steal money from Gage Management.
The State contends that Ricke's act of not recording the settlement checks in the correct account constitutes gaining control over that property by means of Ricke's false representation that the law firm had not sent a collections check. But the State does not show how Ricke's silence could somehow be construed as "a false statement or representation." Even assuming Ricke's silence was a false statement or representation, the State makes no argument that Ricke obtained control over the property by means of those falsehoods which "deceived the property owner and upon which he or she relied," as the statute requires.
As a result, the COA vacated the conviction and sentence.
[Update: the state did not file a PR and the appellate mandate issued on October 18, 2016.]
