Opinion
No. 107,599.
2013-10-1
STATE of Kansas, Appellee, v. Michelle L. HAFER, Appellant.
Appeal from Riley District Court; Meryl D. Wilson, Judge. John W. Thurston, of Addair Thurston, Chtd., of Manhattan, for appellant. Emily Disney, legal intern, Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Riley District Court; Meryl D. Wilson, Judge.
John W. Thurston, of Addair Thurston, Chtd., of Manhattan, for appellant. Emily Disney, legal intern, Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
ARNOLD–BURGER, J.
Michelle L. Hafer appeals her convictions for theft and computer crimes. She argues that the State failed to present sufficient evidence to prove the element of deception in her theft and computer crime convictions by neglecting to show that the victim was deceived and relied in whole or in part on Hafer's false pretense or representation. Because we find that there was sufficient evidence to support the crimes of conviction, we affirm.
Factual and Procedural History
Hafer worked at JCPenney with Danielle Gardullo in the catalog department in Manhattan, Kansas. Their duties consisted of completing in-store transactions, as well as online transactions, and dealing with the merchandise that came in from the online store. Each JCPenney sales associate has their own individual associate number and password. As sales associates, Gardullo and Hafer were taught how to apply discounts to products with the use of coupons. However, Hafer discovered that she could discount items to any price through the online store.
According to Gardullo, Hafer ordered several items at an extremely high discount, which was inappropriate based on the training they received. Moreover, according to their written statements, both Gardullo and Hafer sold and purchased several items at an extreme discount.
Robert Brian Ruiz, JCPenney's store manager, became suspicious of certain catalog orders. Ruiz went to help load some large items for a customer, and when he looked at the order he realized that several of the items had been heavily discounted. Ruiz discovered that Hafer was the associate who placed the order for the customer. He called Christine Thompson, the district loss prevention manager, about the sale.
Based on his discovery, Ruiz reviewed a clearance report that showed any store purchases within a certain period of time that had a discount of 50% or more. Apparently, Gardullo's and Hafer's sales associate numbers were on the report showing that each had sold and purchased items at deeply discounted prices.
Ruiz testified that the cash registers at JCPenney are computers and each cash register is linked to a main computer network. In addition, any catalog order placed by an associate is linked to the main computer network.
Ruiz, Thompson, and Gary Andres met with Gardullo and Hafer at the store on the same day in separate rooms. During their meeting, Hafer and Gardullo prepared written statements regarding the items they sold or purchased at the discounted prices.
The State charged Hafer with several counts of computer crimes under K.S.A. 21–3755(b)(1)(B) and several counts of theft under K.S.A. 21–3701(a)(2) and either K.S.A. 21–3701(b)(3) or K.S.A. 21–3701(b)(5).
Hafer was convicted of two counts of computer crime—Counts 2 and 5—and six counts of theft—Counts 10, 13, 14, 16, 17, and 21. She was sentenced to 18 months of probation with an underlying sentence of 8 months' imprisonment and 12 months of postrelease supervision.
Hafer filed a timely notice of appeal.
Analysis
Hafer asserts that there was insufficient evidence presented by the State to convict her of computer crimes and theft. She suggests that her actions were more akin to embezzlement. As such, the State charged her under the incorrect subsections of the statutes and failed to present sufficient evidence to convict her under the statutes which she was charged with violating.
When the sufficiency of evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
K.S.A. 21–3755(b)(1)(B) states the following:
“Computer crime is ... using a computer, computer system, computer network or any other property for the purpose of devising or executing a scheme or artifice with the intent to defraud or for the purpose of obtaining money, property, service or any other thing of value by means of false or fraudulent pretense or representation....”
K.S.A. 21–3701(a)(2) states the following: “Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property: ... obtaining by deception control over property....”
In order for the State to prove theft by deception, the State would have to prove that Hafer obtained control over JCPenney's property by means of a false statement or representation, that the false statement or representation deceived JCPenney, and that JCPenney relied in whole or in part upon the false statement in giving up control of the property to Hafer. See State v. Saylor, 228 Kan. 498, 500, 618 P.2d 1166 (1980).
Hafer relies on two cases to argue that the State failed to provide sufficient evidence of the intent to defraud and the deception elements in the computer crimes and theft convictions. We will discuss each.
First, Hafer relies on State v. Finch, 223 Kan. 398, 573 P.2d 1048 (1978). In Finch, while walking around the store, a security guard noticed a customer switching price tags from items that were on sale to items that were not on sale. The security guard informed the cashier of what had occurred but told the cashier to let the sale go through. After the items had been paid for and while the defendant was leaving the store, the security guard stopped the defendant and called the police. The defendant was subsequently arrested for and convicted of theft by deception. Our Supreme Court found that in order for a conviction for theft by deception to stand, the State must prove that the defendant had the intent to obtain control over another's property by means of a false statement or representation and that the victim was actually deceived and relied in whole or in part upon the false representation. 223 Kan. at 404. Because the security guard was aware of what Finch was doing, the Supreme Court found that the store was not actually deceived. Notably, the court remanded the case for a new trial on the lesser included offense of “attempt to commit theft by deception.” 223 Kan. at 404. So the court did not find that the act of switching tags was not deceptive, but simply that because the store knew what was going on, the most it could be was an attempt. 223 Kan. at 401–04.
Hafer's case is distinguishable from Finch in one key aspect. Although Hafer's actions were the equivalent of an electronic switching of price tags, because she was entering a deeply discounted price in the computer system that was not authorized for that item, in this case no one with any authority at JCPenney was aware that Hafer was participating in such practices. Merely because Hafer was a sales associate with JCPenney when the manipulation of the prices occurred does not mean that JCPenney was aware of the price manipulation and therefore the element of deception was not present. Accordingly, where the court in Finch found there had been no deception because the store was aware of what was happening, in this case JCPenney was not aware of the deception until well after the fact, after Hafer had taken delivery and possession of the merchandise.
Second, Hafer relies on State v. Rios, 246 Kan. 517, 792 P.2d 1065 (1990). In Rios, the defendant—while employed as the store manager for one of Dillard's department stores—took cash from the cash room safe and created false refund vouchers in order to cover up the thefts. However, our Supreme Court equated the defendant's actions to embezzlement—exerting unauthorized control over property under K.S.A. 21–3701(a)(1)—rather than theft by deception under K.S.A. 21–3701(a)(2) because the bogus writings—the refund vouchers—were used to conceal the thefts, not to cause Dillard's to part with the money represented by the bogus refund vouchers. 246 Kan. at 526–27. In other words, the false statements—the vouchers—were not part of the theft itself. The court used an analogy, cited by Hafer, that if a farmer hires a fox to protect his chicken house, and the fox then steals eggs and replaces them with plastic ones, the fox has simply committed a theft, not a theft by deception. 246 Kan. at 527–28. The theft is complete when the fox steals the eggs; the replacement of the eggs with plastic ones is really irrelevant.
We also find Rios to be distinguishable from Hafer's case. Hafer's deceptive act—of deeply discounting the prices on the computer—was an integral part of the theft, similar to Finch's switching the tags on merchandise. It was not used to cover up an otherwise completed theft. The prices were deceptively altered first (the false statements or representations) and then she purchased the items and received delivery. The manipulation of the prices was not done in order to cover up her theft but was instead a deception that was necessary to perpetrate the theft.
Thus, both Finch and Rios, the sole cases upon which Hafer relies, are distinguishable from Hafer's case and, in fact, support a charge of theft by deception under the facts as presented here.
We next review the evidence presented to determine if it was sufficient to support Hafer's convictions. To reiterate, Hafer was convicted of two counts of computer crime and six counts of theft.
Count 2, which was for a computer crime, and Count 13, for felony theft, occurred on December 11, 2010. On that date, it appears that Hafer purchased a piece of luggage with a retail price of $440 for the discounted price of $15.99. However, the only discount entered into the computer was a 20% employee discount. Moreover, Gardullo's written statement indicated that Hafer had Gardullo ring up the luggage at an extremely discounted price that could not have been reduced to that amount by mere coupons and reward certificates. Moreover, in Hafer's written statement she acknowledged that she purchased and received the luggage at the extremely discounted price.
Count 14, charging misdemeanor theft, occurred on December 12, 2010. On that date, Hafer purchased one vacuum cleaner with a retail price of $429.99 at the discounted price of $8.93, but only a 10% employee discount was applied at the time of the purchase. In her written statement, Hafer indicated that Gardullo rang up the purchase for her. In Gardullo's written statement, she indicated that Hafer returned the vacuum cleaner because it was cracked and Hafer asked for an even exchange.
Count 10, charging felony theft, occurred on December 15, 2010. On that date, Hafer purchased three vacuum cleaners with the retail price of $429.99 each at the discounted price of $8.59 each, but only a 10% employee discount was applied at the time of the purchase. According to Hafer's written statement, Gardullo rang up the three vacuum cleaners for Hafer at the discounted price.
Count 5, charging a computer crime, and Counts 16, 17, and 21, all charging misdemeanor theft, occurred on December 19, 2010. On that date, it appears that Hafer ordered three vacuum cleaners with the retail price of $429.99 each for the discounted price of $0.56 each, but there was only a 10% employee discount applied at the time of the purchase. Hafer ordered an additional vacuum cleaner with the retail price of $429.99 at the discounted price of $8.73, but only a 10% employee discount was applied. In her written statement, Hafer acknowledged that she purchased and received the vacuum cleaners at the discounted price. In addition, Hafer and Gardullo ordered a total of 16 items, with a retail value totaling $804, but they only paid $13.06 for all of the items.
Based on the above, there is sufficient evidence that Hafer manipulated the prices of the items in the computer; that such manipulation was a false representation of the actual price; that based on Hafer's false representation, JCPenney was deceived; and based on that deception JCPenney gave up control of the items to Hafer.
Affirmed. ATCHESON, J., dissenting.
This criminal case should have ended in the acquittal of Defendant Michelle L. Hafer because of how it began—with the county attorney's charging decisions. The county attorney charged both thefts requiring proof Hafer used “deception” to unlawfully take property from JCPenney and computer offenses requiring use of “false or fraudulent pretense.” Taking the evidence in the best light for the prosecution, that's not what Hafer did. She stole from JCPenney, her employer, by “exerting unauthorized control” over the company's property, another form of theft with which she was not charged. Hafer's scheme didn't involve, let alone depend upon, deception or false pretense. The State cannot charge a person with one crime and convict him or her of something else, even a closely related form of the same offense. See State v. Saylor, 228 Kan. 498, 503–04, 618 P.2d 1166 (1980) (If the State charges one means of committing theft, it may not convict a defendant of another means without amending the charging document.). At the end of the bench trial, the Riley County District Court was, therefore, obligated to find Hafer not guilty of the charged crimes.
As the facts and issues have been framed on appeal, Hafer worked in the catalogue department of the JCPenney store in Manhattan. She filled on-line and in-store orders. As part of her job, she entered into the company's computer system merchandise prices, appropriate discounts, payments received, delivery addresses, and other information related to the orders, thereby generating sales tickets or receipts. As indicated in the majority opinion, Hafer apparently was permitted to buy from JCPenney in that way for herself.
Hafer and another JCPenney associate hit upon a scheme in which they would enter the correct price of a piece of merchandise—generally an expensive item—and after applying huge discounts that showed up on the sales record, pay the discounted price. A given transaction could consist of one item or multiple items. Sometimes, Hafer would enter a transaction for her cohort in crime. Sometimes, the reverse was true. Most of the crimes of conviction fit that pattern. But sometimes Hafer simply wrote up sales tickets for herself or friends. The pair wound up paying a small fraction of JCPenney's retail price for the items—less than 10 percent on some of the sales. No one with JCPenney was required to approve or sign off on the transactions for Hafer to obtain the items or have them shipped in conformity with the sales tickets.
The caper came unraveled quite by accident. As the majority notes, the store's general manager was helping on the loading dock with several large items and happened to look at the sales tickets, At least one of them reflected the Hafer Discount. The store manager knew that JCPenney did not authorize discounts of that magnitude. So he reported the situation to a loss prevention officer, and they began investigating. They turned up numerous transactions in which Hafer and her colleague had prepared sales tickets showing huge and entirely unauthorized discounts. When the store manager and the JCPenney loss prevention personnel confronted Hafer and her partner, they more or less fessed up, as I understand the evidence.
For a given transaction, the county attorney charged Hafer with a single count of unlawful use of a computer and then one count of theft for each item included in the transaction. The theft counts tracked K.S.A. 21–3701(a)(2) and, thus, depended upon Hafer's “obtaining by deception control over [JCPenney's] property.” Under K.S.A. 21–3701(a)(1), a person may also commit theft by “[o]btaining or exerting unauthorized control over [the owner's] property.” Hafer was not charged with violating that section of the theft statute. The computer crime counts, charged under K.S.A. 21–3755(b)(1)(B), required that Hafer “us[e] a computer ... for the purpose of obtaining ... property ... by means of false or fraudulent pretense.” Everybody agrees that whatever amounts to deception under the theft statute also amounts to false or fraudulent pretense under the computer crime statute. To do otherwise in this case would be quibbling.
By charging on a deception theory, the county attorney could ratchet up the offenses against Hafer to include counts for both computer crime and theft for the same transaction. The county attorney amended the charges several times. In its final form, the charging document included 9 counts of computer crime under K.S.A. 21–3755, each of which was a felony regardless of the amount of loss; 2 counts of felony theft, each based on a loss of more than $1,000; and 11 counts of misdemeanor theft, each based on a loss of less than $1,000.
Hafer waived a jury, so the case was tried to the court. At trial, Hafer backpedaled on the inculpatory statements she made to the JCPenney employees and claimed the discounts conformed to her understanding of company policy. The district court substantially discounted that defense and found Hafer guilty on two computer crime counts, one felony theft count, and five misdemeanor theft counts. The district court acquitted Hafer on the other counts based on what I gather to have been inconsistencies or ambiguities in JCPenney's business records related to some of the charges. The bases for those acquittals do not figure in the grounds for appeal.
The convictions fail for a different reason. The evidence doesn't support the element of deception or false pretense necessary to prove them. Hafer prepared sales documents that correctly reflected the terms of the transactions. The prices of the items were accurately stated. She wasn't scamming JCPenney by putting in a price way too low for the item. And after she applied the discounts, she or the recipient of the goods apparently paid that amount. So Hafer wasn't reporting payments that were never made. Had she done either of those things the sales receipts would have contained phony information. As part of her job, Hafer was authorized to apply JCPenney discounts in making the computerized sales and generating the sales tickets. To pull off her scheme, she applied unauthorized discounts that were accurately entered and shown on the tickets. The store manager and the loss prevention officers immediately knew the discounts were unauthorized (and grossly excessive) when they retrieved and looked at the sales records.
Hafer, then, made an accurate paper and electronic trail of what she was up to; she correctly documented in JCPenney's business records the discounts she gave herself and the ridiculously low prices she paid for the merchandise. Hafer got away with it because JCPenney had no operating procedure in place for a supervisor to review and approve the tickets at the time of the transactions. The scheme worked not because somebody with JCPenney had been deceived but because nobody with JCPenney was even looking.
Hafer obtained unauthorized control over the merchandise by paying too low a price based on discounts she had no authority to grant. The evidence, therefore, supported neither theft by deception under K.S.A. 21–3701(a)(2) nor unlawful use of a computer to promote a scheme through false or fraudulent pretense under K.S.A. 21–3755(b)(1)(B). Hafer's scheme, however, seems to be something less than ingenious precisely because of its transparency. The records display and preserve the extraordinary discounts, and almost inevitably, a supervisor or auditor would have run across them at some point, triggering precisely the reaction the store manager had when he saw the sales ticket on the loading dock.
The majority's analogy to the shopper switching price tags is inapt. In that sort of theft, the shopper presents the item with the incorrect tag to a cashier who, deceived by the tag, rings up too low a price. The shopper has, in that way, wrongfully gained control of the item by deception and in violation of K.S.A. 21–3701(a)(2). But in Hafer's discount ploy no JCPenney employee occupies a position akin to the cashier. That is, nobody was deceived at the time of the transactions, even assuming the sales tickets and computer records were deceptive, though actually they were accurate and unauthorized. A more comparable scenario would be a shopper switching the tags, putting the item in a shopping bag from another store, and walking out the front door without going through the checkout line at all. Although switching the tags might have been deceptive, it played no part in the shopper getting away with the item. Closer still to this case would be the shoplifter who picks up an item and simply strolls out unchallenged because all of the store employees are on coffee break in the backroom.
In short, Hafer is not guilty of a crime dependent upon deception because nobody at JCPenney had been deceived as she obtained control of the merchandise. But that doesn't make Hafer innocent. She isn't. At oral argument, Hafer's counsel readily conceded the facts taken favorably to the State support convictions for theft based on obtaining unauthorized control of property. He's correct.
The circumstances of this case did not, however, present an insoluble predicament for the county attorney in making a decision on what means of theft or other crimes to charge. The county attorney was not bound to elect one theory to the exclusion of others. In Saylor, the Kansas Supreme Court explicitly made that point about charging thefts. Saylor, 228 Kan. at 503–04. The court noted that in some instances the precise means of theft might be difficult to pigeonhole. But the State has the option of charging in alternative counts as many statutory means of theft as the evidence conceivably might support. The defendant can then be convicted on the count factually grounded in the evidence. So Hafer could have been charged with both forms of theft. See State v. Blanchette, 35 Kan.App.2d 686, 704, 134 P.3d 19,rev. denied 282 Kan. 792 (2006). In addition, the State may amend a charge under K.S.A. 22–3201 to conform to the evidence so long as the amendment adds no new offense and the defendant is not otherwise prejudiced. The county attorney deployed neither option here.
The evidence did not support deception or false pretense essential to the charges lodged against Hafer. She, therefore, should have been acquitted of them. I respectfully dissent from the majority's decision to affirm the convictions. I would vacate them and enter a judgment of acquittal.