State v. Warner - 429 P.3d 910 (Kan. Ct. App. 2018)

Rule:

A claim of insufficient evidence to support a conviction in a criminal case "amounts to a posttrial claim that the State failed to meet its burden to prove each essential element of the charges." State v. Brown, 306 Kan. 1145, 1157, 401 P.3d 611 (2017) (citing State v. Logsdon, 304 Kan. 3, 21, 371 P.3d 836 [2016]). A person is guilty under the statute if the person: (1) obtains control of property of another person; (2) knows or learns the identity of the property's owner; (3) fails to take reasonable measures to restore the property to its owner; and (4) intends to permanently deprive the owner of the possession, use, or benefit of the property. K.S.A. 2017 Supp. 21-5802(a).

Facts:

Walker and Dwayne Whitaker, a couple, ran a restaurant called the Wild Country Café.  In late 2015, a friend of Walker's died and left her a $50,000 life insurance policy. Walker and Whitaker decided to use some of the proceeds to buy an RV and then travel to the Alamo. On December 14, 2015, Walker withdrew $40,000 from her bank. She intended to deposit $25,000 into a new account at a second bank and use the remaining $15,000 to buy the RV. They failed to deposit the money, so they were left with $40,000 in cash as they began their trip to Hays. They reached Hays the evening of December 14 and bought the RV, paid $15,000 in cash from the money bag and $25,000 remained in the money bag. On December 16, the couple went to the Walmart. They brought the money bag into store and kept it in the child seat of their cart while they shopped. Whitaker started feeling ill, so the couple quickly headed for the exit. Walker and Whitaker parked their cart in the store foyer and removed the shopping bags from the child seat area of the cart. The couple failed to take the money bag out of the cart when they took the shopping bags, and they left the store without the money bag. About 20 seconds after the couple left the store, Steven Lenier Warner went straight to Walker and Whitaker's cart. Warner leaned on the cart, then picked up the money bag and put it inside his jacket. He continued to lean on the cart for about a minute, fiddled with the bag inside his jacket, and exited the store. Walmart security called the Topeka police and Officer Larry Gonzalez responded. Walker explained to Officer Gonzalez that she was missing a blue or green money bag with "Wild Country Café" written on it. Walker initially misinformed Officer Gonzalez. Walker then told Officer Gonzalez that the correct amount was $25,000, not $30,000. Topeka police continued to investigate the missing bag after the couple left. The police issued two bulletins on December 2015 and January 2016, respectively, with photos from Walmart's security footage, seeking the identity of the person shown taking the money bag from the cart and leaving the store. Warner called his ex-wife Teresa Grant in January 2016. Warner told Grant that the police were looking for him because they accused him of taking money. He asked her to meet him and give him food and money. Grant agreed to help. After she ended the call with Warner, she looked up the Crime Stoppers bulletin containing photos from Walmart's security footage. Grant had no doubt that Warner was the man pictured in the bulletin, so she called the police. The police then arrested Warner at the hotel. The jury convicted Warner of theft of lost or mislaid property for taking a money bag containing $25,000 that Kim Walker accidentally left behind in a cart at Walmart. Warner appealed his conviction.

Issue:

Did the state admit sufficient evidence to support Warner's conviction?

Answer:

Yes.

Conclusion:

As to the second element, the State admitted Walmart security footage of Warner, Walker, and Whitaker in Walmart on December 16, 2015. The State also admitted testimony from Detective Harrison describing the security footage. Detective Harrison described how Warner followed behind Walker and Whitaker as they pushed their cart, containing the money bag, through the aisle near the checkout lanes to the exit. Detective Harrison also testified that Warner went straight to the couple's cart after they left the store. The video itself showed Warner following behind the couple at a distance of about five or six checkout lanes and showed the couple unloading their grocery bags but leaving behind the money bag in the cart. The video also showed Warner going straight to the couple's cart to pick up the bag about 20 seconds after the couple left the store. As to the third element, the footage showed that a man identified as Warner approached the couple's cart about 20 seconds after they left the store. Warner went straight to the cart. He remained at the cart for about 90 seconds and put the bag inside his jacket. He did not call out to Walker and Whitaker about the bag; he did not contact a Walmart employee; and he did not go to the service desk nearby at the front of the store. Instead, he left the store on foot, even though it was December and he was initially dropped off at the store by a truck. He walked past the store and out of the parking lot before disappearing from the view of the security cameras. He failed to make any effort, not only reasonable effort, but any effort, to return that property to the lawful owner. He grabbed it and walked out of the store. It was pay day." Indeed, the money bag and money were never recovered and never returned to Walker.