Opinion
111,268.
04-24-2015
STATE of Kansas, Appellee, v. Mark A. LAWRENCE, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., POWELL, J., and MERLIN G. WHEELER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Sara Simon lost her cell phone. Days later, the man in possession of her phone contacted her, and she agreed to wire him money if he would send her the phone. The man asked her to wire the funds in question to Mark A. Lawrence, and after she paid, she never heard from him again. Instead, Lawrence took the phone to Best Buy and traded it in for store credit. The State subsequently charged Lawrence with making false information and theft of mislaid property. A jury convicted him of these crimes, and he appeals.
Lawrence raises three issues on appeal. First, he contends that the court should have declared a mistrial when a potential juror indicated during voir dire that he knew of Lawrence and his priors. Because we find that the comment by the juror was not so prejudicial as to create a fundamental failure in the proceedings, the refusal of the district court to declare a mistrial was not an abuse of discretion.
Lawrence next contends that there was insufficient evidence for the jury to convict him of both charges. After a thorough review of the record on appeal, we find the evidence was sufficient to support the jury verdicts.
Finally, Lawrence argues that the district court erred in allowing the admission of hearsay evidence. But we find the evidence in question was not hearsay, so this claim of error also fails.
Factual and Procedural History
In September 2012, Simon misplaced her Galaxy S III cell phone while leaving the area of Manhattan commonly known as Aggieville. After Simon returned home to Kansas City, Missouri, a man named Shawn Vargo contacted her and explained that he had purchased her phone from another individual. He and Simon struck a deal: If Simon wired him $100, he would mail her the phone. Simon agreed to wire funds through a middleman, Vargo's friend Lawrence. After wiring the money, however, Simon never heard from either man again. She eventually filed a police report with the Riley County Police Department, where officers uncovered that Lawrence had sold Simon's phone to Best Buy as part of a trade-in program.
A few months later, the State charged Vargo's middleman Lawrence with two offenses: making false information and theft. The State eventually amended the theft charge to theft of lost or mislaid property. The case proceeded to jury trial.
Simon testified first, explaining that she had travelled to Manhattan on the weekend in question to attend a Kansas State University football game. She testified that she misplaced her phone somewhere between Aggieville and a friend's home. At the time she lost it, her phone was relatively new, and the combined value of the phone and its case was approximately $550.
Simon testified that she attempted to call her phone several times after losing it, but to no avail. Her cell phone provider suggested she reactivate an older phone with her same number when she returned home to Kansas City. Shortly after reactivating the old phone, she began to receive calls from unfamiliar phone numbers with an unfamiliar area code. Simon eventually touched base with Vargo, who informed her he had purchased the now-deactivated Galaxy phone from another individual. Simon testified that the two discussed how to return the phone to her. Vargo offered to mail the phone to Simon in exchange for $100, “[k]ind of like a reward for being a nice guy.” Simon agreed to wire the money to Vargo through Lawrence, the individual who would actually collect the money from the wire service inside Walmart. Simon testified at trial that she spoke to both Vargo and Lawrence about the transfer and that she exchanged text messages with the men to ensure she spelled Lawrence's last name correctly. Simon estimated she spoke to Lawrence at least twice.
After completing the transaction, neither man contacted Simon again. When attempting to contact Vargo failed, Simon filed a police report. Simon testified that she never received her phone or any reimbursement from the wire transfer. She also testified that she never told Lawrence that he could keep or sell her phone, and she never received any proceeds from Lawrence's sale of the phone.
On cross-examination, Simon testified that Vargo had informed her that he could not enter Walmart to pick up the money because he had previously stolen socks from the store. Simon acknowledged that Lawrence did not broker the exchange, but she emphasized that his close involvement with the transaction implied that he, too, benefited from the deal. In fact, Simon testified that she specifically asked Lawrence, “ ‘Okay. Are you going to send my phone to me?’ “ Moreover, Simon emphasized that both Lawrence and Vargo controlled the phone at various points during their conversations. But Simon also admitted that Vargo was the one who agreed to return her phone. On redirect examination, however, Simon reiterated that Lawrence received the money from the wire transfer. Simon also stressed that she never permitted Lawrence to keep or sell her phone.
Next, Officer Jayson Hubbard of the Riley County Police Department, the officer who took Simon's report, testified. Hubbard testified that in addition to explaining the circumstances surrounding her missing phone, Simon provided copies of her text message conversation with Vargo and the receipt from the wire transfer. After the district court accepted it as evidence, Hubbard read the text message conversation into the record. The conversation mostly consisted of Simon asking Vargo to return her phone and Vargo agreeing provided Simon reimburse him the $100 he lost buying the phone from another individual. Vargo apologized repeatedly throughout the conversation. As the conversation progressed, Simon and Vargo arranged the wire transfer and discussed the proper spelling of Lawrence's last name. After Simon provided the reference number for the transfer, however, Vargo stopped replying to her messages.
On cross-examination, Hubbard acknowledged that the text message conversation indicated that Simon and Vargo negotiated the exchange and Lawrence entered the picture only as the money collector. Hubbard also admitted that although Lawrence's involvement was “obvious,” nothing suggested that Lawrence himself originally obtained Simon's phone. Hubbard also noted that Simon never informed him she had spoken to Lawrence on the phone.
Initially on redirect examination, the State asked Hubbard to review his police report. When he finished reviewing the document, the State asked, “[O]n September 7th of 2012, did you in fact get information that Mark Lawrence had a cell phone?” Lawrence objected, arguing that the answer constituted inadmissible hearsay. The district court overruled the objection as the answer required only a yes or a no, not another individual's out-of-court statement. The State again asked Hubbard whether he “receive[d] information that Mark Lawrence was involved and had this phone,” and Lawrence again objected. The district court overruled the objection a second time, and Hubbard answered, “Yes.”
Next, Michael Fuentes, the general manager of both Manhattan Best Buy stores, testified. Fuentes explained that in September or October 2012, Detective Dan Bortnick contacted him concerning a transaction at the Best Buy mobile store in the mall. Bortnick asked Fuentes whether he remembered a transaction involving a certain phone. Fuentes testified that he specifically recalled the transaction at issue because it occurred shortly after the mobile store opened and began its phone trade-in program. Fuentes explained that the seller traded in a “late model, highly desirable phone” rather than an older phone, which caused the transaction to stand out in his mind.
While testifying, Fuentes reviewed the sale document and revealed that Lawrence indeed sold the phone in question. Fuentes read a portion of the sales document aloud, explaining that it confirmed that the seller had permission to trade the phone in. Fuentes testified that he provided the agreement and security footage to Bortnick. The footage in question was entered into evidence. Regarding the sale specifically, Fuentes testified that had Lawrence informed them that the phone belonged to someone other than himself, Best Buy would not have permitted the trade. In fact, Fuentes noted that one of the purposes of the sale document was to help prevent the sale of stolen property.
On cross-examination, Fuentes revealed that he did not recall the particulars of his conversation with Lawrence. Fuentes also acknowledged that the Best Buy gift card system cannot alert employees at the time a specific card (such as the one Lawrence received for the trade) is used.
Lastly, Bortnick testified. He explained the steps in his investigation, including his contact with Simon and her cell phone provider and his attempts to track the phone's serial number. By using a tracking service, Bortnick discovered that Simon's phone had been sold to the Best Buy mobile store. When Bortnick approached Fuentes about the sale, Fuentes described the seller as a man with “red hair and a teardrop tattoo.” After reviewing the security footage and other information regarding the transaction, Bortnick recognized Lawrence as the seller.
Bortnick also investigated the wire transfer at the local Walmart. He collected documents regarding the transfer and the security footage from the day in question. Upon reviewing the video, Bortnick again recognized Lawrence as the man completing the transaction. He also recognized Vargo, who appeared with Lawrence in footage from the parking lot. Bortnick testified that the phone was never recovered and that the proceeds from the wire transfer and the trade-in were never turned over to Simon. The footage from Walmart was also entered into evidence.
On cross-examination, Bortnick acknowledged that Simon reported that Lawrence's involvement only concerned him collecting the money from the wire transfer. Bortnick also admitted that he never attempted to track where or when the Best Buy gift card Lawrence received as proceeds from the trade-in was used.
Based on this evidence, the jury convicted Lawrence of both charges. The district court sentenced Lawrence to a controlling sentence of 19 months' imprisonment, with the two sentences running concurrently. Lawrence timely appealed.
Analysis
The district court did not abuse its discretion in refusing to discharge the jury.
Lawrence first argues that the district court abused its discretion when it failed to discharge the jury. Lawrence contends that the combination of a comment by potential juror J.M. and the district court's unwillingness to admonish the jury about that comment resulted in a fundamental failure of the proceedings and prejudiced the jury against him. An overview of the incident with J .M. follows.
J.M. knows something about Lawrence
During Lawrence's portion of voir dire, a potential juror was struck for cause after he explained he would struggle to be impartial. The next juror in the pool, J.M., was called to fill that juror's place. The district court asked J.M. whether any of the questions asked by the parties up until that point “st [u]ck out in [his] mind” as one he needed to reply to. At that time, the following exchange occurred:
“A. [J.M.] Well, I know of the defendant and of his priors. So I don't really feel
“THE COURT: And without getting into any particulars, do you think that because—you've lived in the community then for a while and know of Mr. Lawrence?
“A. Yes.
“THE COURT: And because of that you feel that you would not be in a position to be fair to him and the State equally and balance the evidence fairly, is that what you are telling me?
“A. Correct.”
The district court and the parties then engaged in an off-the-record discussion. When they returned to voir dire, Lawrence asked whether J.M. felt he could serve on the jury, and J.M. replied, “Oh, I think that I could render a fair verdict. Yes.” Despite this, Lawrence requested that J.M. be removed for cause, and the district court agreed. Voir dire then continued without further incident or any other mention of J.M.'s comment.
After the jury was sworn but prior to opening statements, Lawrence moved the district court to discharge the jury based on J.M .'s comment. Lawrence argued that because his prior crimes were not admissible in the present case, J.M.'s comment regarding his priors tainted the jury and required the whole panel be discharged. Lawrence also revealed that, during the sidebar, the district court asked that he “stay away from that [comment by J.M.] and simply ask[ ] for him to be excused.” In response, the State argued that the jury did not necessarily understand the word “priors” to mean prior convictions and that Lawrence failed to show any prejudice from the fleeting reference. The State also pointed out that despite knowing about Lawrence's past, J.M. “acknowledged that he could render a fair verdict.”
The district court denied Lawrence's motion. The district court noted that it believed an admonition about J.M.'s comment would “ensure that all of the jurors are paying attention to what has just been said as opposed to leaving it lie.” Ultimately, the district court found that the comment was not prejudicial enough to warrant discharging the jury and that any admonition would only “emphasize the fact that there may be priors and get [the jury] speculating about that.” The trial began shortly after that ruling.
J.M.'s comment regarding Lawrence's priors was not so prejudicial as to create a fundamental failure in the proceedings
As a preliminary matter, Lawrence specifically moved the district court to discharge the jury. A motion to discharge the jury panel is in fact a unique motion that concerns “[a]ny objection to the manner in which a jury panel has been selected or drawn” and addresses any improprieties in selecting a jury panel. See K.S.A. 22–3407(1) ; State v. Ji, 251 Kan. 3, 9, 832 P.2d 1176 (1992). However, it is clear from both the record and the parties' appellate arguments that this motion was understood as a motion for mistrial. Accordingly, we will analyze it as such.
This court reviews the district court's decision on a motion for mistrial under an abuse of discretion standard. A district court abuses its discretion when its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Armstrong, 299 Kan. 405, 442, 324 P.3d 1052 (2014).
Lawrence's argument is uncomplicated: J.M.'s brief reference to his “priors” and the district court's unwillingness to admonish the remaining jurors regarding that reference created a fundamental failure in the proceedings and prejudiced the jury. The statutory ground for mistrial encompassed by this argument can be found in K.S .A. 22–3423(1)(c), which permits a mistrial when “[p]rejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” In evaluating a motion for mistrial based on this ground, the district court must first decide if the prejudicial conduct created a fundamental failure in the proceeding. If so, the district court must next decide whether the conduct made it impossible to continue the proceeding without denying the parties a fair trial. Armstrong, 299 Kan. at 441–42 ; see State v. Santos–Vega, 299 Kan. 11, 23, 321 P.3d 1 (2014). When considering the second step of this analysis, a court must assess whether the fundamental failure affected a party's substantial rights under our Kansas harmless error statutes, K.S.A. 60–261 and K.S.A. 60–2105. However, if a right guaranteed by the United States Constitution is implicated, the error must instead be assessed under the constitutional harmless error standard in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 (1967). Santos–Vega, 299 Kan. at 23–24.
Importantly, the question of whether a fundamental failure in the proceeding existed “varies with the nature of the alleged misconduct, such as whether the allegation is based on the actions of a witness, the actions of a bystander, prosecutorial misconduct, or evidentiary error.” State v. Ward, 292 Kan. 541, Syl. ¶ 4, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). In the instant case, the misconduct in question concerns a potential juror's comment during voir dire, an issue our Kansas Supreme Court has considered several times. For example, in State v. McCorgary, 224 Kan. 677, 687, 585 P.2d 1024 (1978), a potential juror and cousin of the defendant “expressed a strong feeling in front of other prospective jurors that what she had read in the paper about these murders was true.” The juror was excused, but the defendant moved for a mistrial. The district court admonished the jury to disregard statements from potential jurors and anything the jurors read in the newspapers, but it also denied the motion. On appeal, our Kansas Supreme Court determined that the defendant failed to show any prejudice from the statements. In fact, the court noted that the juror's statements “were inadvertent and ... no intentional action by the state precipitated these improper statements.” 224 Kan. at 687.
Similarly, in State v. Mayberry, 248 Kan. 369, 380, 807 P.2d 86 (1991), disapproved on other grounds by State v. Gunby, 282 Kan. 39, 114 P.3d 647 (2006), a potential juror mentioned that “he knew about Mayberry from his previous conviction” in front of the rest of the jury panel. The juror was excused for cause. On review, our Supreme Court found that the defendant failed to show prejudice from this comment. The court emphasized that the comment was (1) “not precipitated by State action” and (2) did not provide details of the defendant's prior crime. 248 Kan. at 380–81. Additionally, the court noted that “the trial court instructed the jury to disregard any information concerning the case other than that elicited at the trial.” 248 Kan. at 381.
In another case, a juror responded to a question regarding her outside knowledge of the case and volunteered that she knew the crime was gang related. State v. Betancourt, 299 Kan. 131, 143, 322 P.3d 353 (2014). The district court had granted a motion in limine regarding the gang evidence, and the defendant moved for mistrial on the argument that juror's reference to his gang involvement tainted the panel. The district court denied the motion, and the defendant included the issue in his appeal. In finding that the district court did not abuse its discretion by refusing to grant a mistrial, our Kansas Supreme Court noted that the issue of gang involvement was mentioned “only in passing” and “was not brought up again.” 299 Kan. at 146. The court also observed that the defendant never requested an examination of the jury or a limiting instruction, and he did not move to strike the juror for cause. Accordingly, the court found no error in denying the motion. 299 Kan. at 146.
In another less similar case, our Supreme Court found no error in denying a motion for mistrial after a potential juror voiced a misunderstanding about a stipulation and his inability to remain impartial in front of the whole panel. State v. Harris, 293 Kan. 798, 815–17, 269 P.3d 820 (2012). There, the district court cleared up the misunderstanding on the record and discussed the impartiality issues with the juror in a sidebar. Our Supreme Court emphasized there that “the substantive portion of the discussion concerning possession of the gun occurred in detail at the sidebar and outside the jury panel's hearing.” 293 Kan. at 816. And although not concerning voir dire, our Supreme Court in State v. Minski, 252 Kan. 806, 809–10, 850 P.2d 809 (1993), affirmed the district court after it refused to grant a mistrial when a juror fainted during trial. There, the presiding judge excused the fainting juror after a brief ex parte conversation and never questioned or cautioned the other jurors about the effect of the fainting spell. Although the defendant's issues on appeal concerned more than simply the district court's failure to admonish the jury, our Supreme Court specifically determined that he “presented no evidence from any juror to support his contention of prejudice due to the fainting incident.” 252 Kan. at 815.
Here, the district court clearly determined that J.M.'s comment did not prejudice the jury as a whole. Our Kansas precedent supports this conclusion. Like in Mayberry and Betancourt, J .M. only briefly mentioned the issue of Lawrence's priors, and no one revisited the issue in front of the panel as a whole. The comment was not a result of State action but rather the answer to a question from the district court. And, like in Mayberry, J.M. provided no specific information about the nature or extent of Lawrence's priors. In fact, immediately after he mentioned the word “priors,” the district court interrupted him and warned him against “getting into any particulars.” Moreover, J.M.'s answers regarding his ability to be impartial set him apart from the potential jurors in Harris and McCorgary. J.M. waffled slightly, saying first that he could not be fair and impartial and then saying he could. These comments differ dramatically from the strong and unequivocal statements of partiality in other cases. In short, J.M.'s comments closely mirror those in other cases where a juror's single, spontaneous statement did not prejudice the trial as a whole.
On appeal, Lawrence emphasizes that part of the prejudice he suffered stemmed from district court's refusal to admonish the jury. However, he cites no authority indicating that an admonition is required in such a situation. In fact, a review of the above cases indicates that although it is helpful to answering the question of whether prejudice exists, an admonition or limiting instruction is not required. See Betancourt, 299 Kan. at 146 ; Harris, 293 Kan. at 815–16 ; Minski, 252 Kan. at 815. It is unclear from the record whether Lawrence even requested an admonition, although his comments after he moved for mistrial suggest that the district court simply asked both parties to not emphasize J.M.'s comment but rather just remove him from the panel. Similarly, it is uncertain whether Lawrence asked to examine the jury during the sidebar that took place immediately after J.M.'s remark. Regardless, the district court's rationale to simply move past the fleeting comment rather than drawing attention to it with an admonition is sound, especially in the light that J.M. himself said he could remain impartial. Moreover, the jury instructions clearly stated that the jury needed to render its decision based only on that information admitted into evidence. Nothing in the record indicates that the jury did not follow this instruction—or, indeed, that the jury was influenced by J.M.'s use of the word “priors.”
In short, J.M.'s comment regarding Lawrence's priors was not so prejudicial as to create a fundamental failure in the proceedings. The brief comment was inadvertent, spontaneous, and promptly halted by the district court. J.M. did not share any specific details about the priors at issue, and he ultimately informed the district court that he could provide Lawrence a fair trial. The district court elected against admonishing the jury regarding J.M.'s comments, and Lawrence never requested an admonition or to examine the jury regarding the comment's prejudicial effect. Because no fundamental failure existed, the district court did not abuse its discretion in refusing to grant a mistrial.
There was sufficient evidence to convict Lawrence of each offense.
Lawrence next argues that the evidence was insufficient to convict him beyond a reasonable doubt. When the sufficiency of the evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in the 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 the conviction, this court generally will not reweigh evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). Importantly, a verdict may be supported by circumstantial evidence if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. However, the evidence need not exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618–19, 186 P.3d 755 (2008).
As Lawrence challenges both convictions on this basis, they will be analyzed separately.
Making false information
K.S.A.2014 Supp. 21–5824(a) defines making false information as
“making, generating, distributing or drawing, or causing to be made, generated, distributed or drawn, any written instrument, electronic data or entry in a book of account with knowledge that such information falsely states or represents some material matter or is not what it purports to be, and with intent to defraud, obstruct the detection of a theft or felony offense or induce official action.”
In this particular case, the written instrument in question is the sales document receipt from Best Buy that verified Lawrence's ownership of Simon's phone. Despite the existence of this signed document, Lawrence contends that the State failed to prove (1) that he knew the information he provided regarding his ownership of the phone was false, and (2) that he intended to defraud or obstruct the detection of a theft.
Turning first to the knowledge element, the defendant's knowledge “is an essential element of the offense” and requires “actual information that the writing falsely states or represents some material matter.” State v. Edwards, 250 Kan. 320, 324, 826 P.2d 1355 (1992). Accordingly, “[s]peculation, opinion, or constructive notice that the writing falsely represents a material matter is not sufficient.” 250 Kan. at 324.
The specific language in the acknowledgement that Lawrence signed and swore to reads: “I am the sole and rightful owner of the items described above and that I have full authority to sell or otherwise dispose of the items.” Lawrence claims on appeal that the State failed to present any evidence demonstrating that he knew himself to not be the rightful owner of the phone. To put it another way, Lawrence argues the State did not show he knew the phone had been stolen.
But direct evidence from Simon herself counters this claim. Simon testified at trial that she spoke to both Lawrence and Vargo about the wire transfer. Specifically, she estimated she spoke to Lawrence at least twice. At that time, she asked Lawrence, “ ‘Are you going to send my phone to me?’ “ Even when Simon acknowledged that Lawrence did not broker the exchange, she stated that he and Vargo both controlled the phone and that his involvement implied to her that he received some benefit of the bargain. And Simon clearly stated that she never permitted Lawrence to either keep or sell her phone.
Moreover, circumstantial evidence supports the conclusion that Lawrence knew that he did not own Simon's phone. The text message clearly indicates that Vargo knew the phone belonged to Simon. Even if Vargo had sole control of Simon's phone until after the wire transfer, Lawrence clearly possessed the phone at the time he traded it into Best Buy—a fact that Hubbard discovered during his investigation. But Simon testified that Lawrence controlled the phone during at least some of her conversations with Vargo. Vargo and Lawrence also appear together on the surveillance footage from the Walmart parking lot. Vargo passed the phone to Lawrence to talk to Simon, and one of the men texted Simon about how to spell Lawrence's last name. Despite Vargo brokering the exchange, Lawrence alone retrieved the money from the wire transfer. This involvement appears to be more complicated than that of a simple middleman innocently collecting the money from Walmart. Instead, Lawrence was closely involved with the deal between Simon and Vargo and served as a vital cog in the exchange.
Based on this evidence, a rational factfinder could find beyond a reasonable doubt that Lawrence possessed actual knowledge that he was not the owner of the phone. Simon referred to it as her phone and spoke to him about having it returned; Lawrence worked closely with Vargo, who definitely knew the phone belonged to Simon. As such, the State presented sufficient evidence to prove this element.
Next, Lawrence contends that the State failed to show that he intended to either defraud Best Buy or obstruct detection of a theft. This contention is tied up in the previous claim: Because Lawrence did not realize that Simon owned the phone in question, there was no evidence that he had the intent to defraud Best Buy.
In Kansas, intent to defraud is defined as “an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.” K.S.A.2014 Supp. 21–5111(o). Here, the deception in question—namely, Lawrence's assertion he owned Simon's phone—induced Best Buy to buy the phone from him in exchange for the gift card. Feuntes testified that had Lawrence informed the store that Simon owned the phone, the trade-in would not have occurred. In fact, Feuntes explained that the policy existed at least in part to prevent individuals from selling stolen property. Assuming based on the above analysis that Lawrence knew the phone belonged to Simon, it is clear Lawrence fraudulently signed the declaration of ownership in order to complete the exchange.
Moreover, there is circumstantial evidence to demonstrate Lawrence sold the phone to prevent discover of its theft as well. Feuntes testified that the exchange caught his attention because Lawrence sought to sell a “late model, highly desirable” phone, which was unusual. Lawrence exchanged the phone—worth $550 with the case—for only $185. Additionally, the transaction at the Best Buy store occurred 4 days after the wire transfer and only 1 day after Simon's last text messages to Vargo. Given that Lawrence knew the phone belonged to Simon and that she expected its return, this timeline demonstrates an attempt by Lawrence to dispose of the phone and prevent Simon from tracing its theft back to him.
In short, a rational factfinder could, in light of the above evidence, find beyond a reasonable doubt that Lawrence signed the acknowledgment of ownership with the intention of either deceiving Best Buy into accepting the phone or to obstructing detection of its theft. As such, the State provided sufficient evidence to the jury to support each element of the offense of making false information.
Theft of lost or mislaid property
Lawrence also challenges his conviction for theft of lost or mislaid property. This offense occurs when an individual “obtain[s] control of property of another” and “(1) [k]nows or learns the identity of the owner thereof; (2) fails to take reasonable measures to restore to the owner [the property]; and (3) intends to permanently deprive the owner of the possession, use or benefit of the property.”K.S.A.2014 Supp. 21–5802(a). Once again, Lawrence contends that he did not know the phone belonged to Simon and, as such, could not attempt to return her phone.
But again, Lawrence's logic fails. As explained above, direct and circumstantial evidence demonstrates that Lawrence knew that the phone belonged to Simon. Lawrence spoke to Simon twice, during which time Simon requested he send her phone, and he helped Vargo—who also knew the phone belonged to Simon—arrange the wire transfer. A rational factfinder could find beyond a reasonable doubt that Lawrence knew or learned the identity of Simon at some point during his conversations with her and Vargo and convict on that basis.
The district court did not abuse its discretion in admitting certain evidence over Lawrence's hearsay objection.
In his last issue on appeal, Lawrence contends that the district court erred in overruling his objection to one of the State's questions to Hubbard. He argues that the answer to the question—which asked whether Hubbard ever obtained information that Lawrence had control of a phone—required inadmissible hearsay. Like with the motion for mistrial, a district court's decision to admit or exclude hearsay evidence is reviewed under the abuse of discretion standard. State v. Miller, 42 Kan.App.2d 12, 21–22, 208 P.3d 774 (2009), aff'd 293 Kan. 535, 264 P.3d 461 (2011). However, to the extent that the issue requires statutory interpretation, this court's review is unlimited. 42 Kan.App.2d at 22.
By definition, hearsay is “a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated” and is inadmissible except in certain circumstances. K.S.A.2014 Supp. 60–460. However, an out-of-court statement offered “ ‘merely for the purpose of establishing what was then said, and not for the purpose of establishing the truth of the statement’ “ is not hearsay. State v. McKissack, 283 Kan. 721, 736, 156 P.3d 1249 (2007). Similarly, a statement is not hearsay when offered solely “to show either the fact of its having been made or to prove the effect on the listener.” State v. Smith, 271 Kan. 666, Syl. ¶ 1, 24 P.3d 727, cert. denied 534 U.S. 1066 (2001).
A review of Hubbard's testimony indicates that neither the State's question nor Hubbard's answer involved any hearsay. The State's original question asked, “[D]id you in fact get information that Mark Lawrence had a cell phone?” After the first objection, the State rephrased and asked, “[Y]ou did receive information that Mark Lawrence was involved and had this phone?” When Lawrence again objected, the State rephrased yet again, asking, “[Y]ou did have information that Mark Lawrence was involved?” Each question required only a yes or no answer from Hubbard and not, as Lawrence contends, an out-of-court statement. Hubbard in fact answered both the second and third versions of the questions by saying, “Yes, I did, sir.” This answer was most definitely not an out-ofcourt statement by another “offered to prove the truth of the matter stated.” See K.S.A.2014 Supp. 60–460. Instead, it was simply a statement of Hubbard's knowledge: yes, at some point, Hubbard discovered that Lawrence had possession of Simon's cell phone.
Lawrence contends that the problem with Hubbard's testimony is not his answer as much as the question itself because the information Hubbard obtained originated from “some unknown, unnamed third party.” However, nothing in either the question or the answer implies that Hubbard gained this information from another person. The question asked only whether Lawrence received information about Lawrence and a cell phone, not who Lawrence received the information from or the specifics of that information. There was no indication in either the question or answer whether Hubbard received the information in question from another person, his investigation, or even Lawrence himself. It therefore cannot be said that the question contained an inadmissible hearsay statement.
Moreover, even if the information about Lawrence's possession of a cell phone constituted the statement of an “unknown, unnamed third party,” the statement was not admitted in order to prove the truth of the matter asserted. On cross-examination, Hubbard testified that during his investigation, he uncovered no evidence of Lawrence having actually taken Simon's cell phone. The question on redirect examination—asked after Hubbard reviewed his police report—revealed that Hubbard did indeed have some evidence of Lawrence possessing the phone. The purpose of the question was to show that Hubbard had knowledge he had previously claimed he lacked. In short, the question and answer was offered solely to show “the fact of [the statement] having been made,” not its truth. See Smith, 271 Kan. 666, Syl. ¶ 1.
Because the question and answer regarding the information Hubbard received during his investigation did not constitute hearsay, the district court did not err in admitting that evidence at trial.
Affirmed.