State v. Laborde

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 107,872

STATE OF KANSAS,
Appellee,

v.

JODIE LABORDE,
Appellant.


SYLLABUS BY THE COURT

1.
Supreme Court Rule 8.03(a)(4)(C) (2014 Kan. Ct. R. Annot. 77) requires the State
to file a petition for review or a cross-petition for review if it seeks Supreme Court review
of a conviction reversed by the Court of Appeals.

2.
The State is not permitted to file a petition for review or a cross-petition for review
if it prevails in the Court of Appeals merely because it disagrees with the rationale upon
which the Court of Appeals relied.

3.
Theft by obtaining or exerting unauthorized control over property or services
requires proof of different statutory elements than theft by obtaining control over
property or services by deception.

4.
In order to establish the offense of theft by deception, the State must prove: (1)
The victim was the owner of the property, (2) the defendant obtained control over the
2



property by means of a false statement or representation which deceived the property
owner and upon which he or she relied, and (3) the defendant intended to deprive the
owner permanently of the use or benefit of the property.

5.
Unless exceptional circumstances exist, appellate courts do not consider issues on
appeal that were not raised by the parties.

Review of the judgment of the Court of Appeals in an unpublished opinion filed May 24, 2013.
Appeal from Clay District Court; PAUL E. MILLER, judge. Opinion filed November 6, 2015. Judgment of
the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
briefs for appellant.

Richard E. James, county attorney, argued the cause, and Derek Schmidt, attorney general, was
with him on the briefs for appellee.

The opinion of the court was delivered by

Per Curiam: In this peculiar case, the State brought charges against the defendant
asserting elements under one statutory theory of theft, but the jury convicted the
defendant under instructions setting out a different theory of theft. The Court of Appeals
found that the conviction was the result of error invited by both parties and affirmed on
that basis. We conclude, however, that the parties never raised on appeal the discrepancy
between the charge and the instruction and the case must be analyzed on the terms that
the parties argued it, as a matter solely of sufficiency of the evidence. Considered from
that perspective, we disagree with the conclusion that the Court of Appeals reached and
reverse.
3




The evidence produced at trial shows that Staff Sergeant Harry Price III lived for
approximately 2 months with the defendant Jodie Laborde on a farm in Clay County,
Kansas. They had been in a relationship for about a year, and he planned on marrying
her. Price kept personal items at the farm, including gear issued to him by the United
States Army.

On October 3, 2010, Price and Laborde had a falling out after an altercation
between his daughter and Laborde. Laborde called for police intervention, and a couple
of officers arrived at the scene. Price informed them that he was leaving anyway for a
legal proceeding in West Virginia, and he left the premises, taking with him tools and
four small file boxes that were in his truck.

Price then called one of the officers and asked for permission to return to the farm
to retrieve his dress uniform and other military gear. The officer went into the house and
brought back a paper bag full of civilian clothing that Laborde provided. Laborde did not
give him the dress uniform, however; she instead informed the officer that the dress
uniform and other gear were in a storage shed in Abilene. Price then left for West
Virginia, not returning until a week later.

Meanwhile, on October 5, 2010, Barb Heller, who moderated a military-family
support group on the Internet, responded to Laborde's report that she was the victim of
abuse. She traveled to Kansas from Arizona to meet Laborde and help her with household
chores. While straightening up a closet, Heller discovered Price's dress uniform on the
floor. When Heller inquired why the uniform was in the house, Laborde started to shout
at her and accused her of going through her closets and belongings.

4



Upon his return from West Virginia, Price went to the farm on October 17 for the
purpose of recovering his military gear, much of which had been issued in anticipation of
deployment to Iraq. An officer escorting him told him he could not go onto the property,
and Laborde informed the police escort that Price already had the materials he was
seeking.

On November 2, Price called law enforcement and asked for assistance in going
onto the farm to retrieve his property. Two officers accompanied him to the farm to keep
the parties apart while the officers recovered the gear necessary for his deployment. Price
waited while a deputy asked Laborde about his military gear. She told the deputy that she
had taken the gear to Price's place of work. Price had already checked with his post,
however, and verified that no one had brought any gear. When Price informed the deputy
that he had checked with his post, Laborde then stated that she had taken the gear to a
barracks where he had once been stationed. Price had already checked the barracks and
determined that nothing had been turned in at that location either. Laborde then said that
the gear was in storage.

Laborde initially told the police that they could not come onto the farm, and she
claimed that she had sole control of the farm. She eventually relented and gave the police
permission to look through the house and sheds. They found a bag of military gear, but
name tags showed that it belonged to other soldiers, not Price, and Laborde told the
officers that another soldier had started living at the farm.

Another deputy talked with Laborde and accompanied her back to the house. He
persuaded her to allow Price to take his Harley Davidson motorcycle away from the farm.
The police escort did not look for Price's other property, and again Laborde stated that
Price already had constructive possession of all of the military gear, either at his barracks
or in storage.
5




Not long afterwards, soon after Thanksgiving and shortly before service-family
advocate Heller left Kansas, she had a conversation with Laborde about how her new
romantic relationship was going. She asked if things were going well enough that
Laborde could give Price his materials back. Laborde responded that she had sold his
possessions at a garage sale.

Price subsequently obtained judicial leave to enter the farm to retrieve his
property. On December 8, accompanied by a deputy, he walked through the farm.
Laborde informed the police escort that she had taken Price's property to the base. Price
nevertheless was able to locate about half of the missing military gear, but he never was
able to locate about $4,615.50 worth of military property, including such items as coats,
sleeping bags, hats, safety glasses, night-vision goggles, a first-aid kit, and shirts. When
asked to explain how Price was able to find some of his military gear on the premises
after she said that it was all gone, Laborde accused Price of sneaking onto the property
and hiding the gear in a locked shed.

Around Christmas, service-family advocate Heller sent Laborde a text-message
again inquiring about the status of Price's military gear. Laborde replied with a text-
message reading: "WTF. Give it a rest! Taken or donated to GW! What is ur deal? U
worried about them or us? NOTHING of theirs is anywhere near us or our home. Wanna
come?" Laborde testified at trial that her message referred only to those items that Price
left after his December 8 walk-through, and she further testified that police had given her
permission to sell those items. Earlier, however, Laborde had denied sending the text and
had accused Price's daughter of sending the text on her phone without her permission.
Laborde continued to deny disposing of any military property.

6



Army Sergeant Luke McGuire was assigned to investigate Price's failure to return
military property that was in his custody. McGuire testified that Price, despite having
direct responsibility for the equipment, was not liable for its loss because he was not
allowed back on the premises and had made reasonable attempts to retrieve it. During the
course of his investigation, McGuire left messages for Laborde to call him back, but she
never returned the calls. McGuire also checked with Price's unit headquarters and
company buildings to determine whether the missing property had been turned in, which
it had not.

On January 11, 2011, the State filed a complaint charging Laborde with one count
of felony theft by deception under K.S.A. 21-3701(a)(2). On April 29, 2011, the State
filed an information, again charging Laborde with theft by deception. Finally, on
December 1, 2011, at the beginning of the jury trial, the State filed an amended
information, repeating the K.S.A. 21-3701(a)(2) theft by deception charge but changing
the owner of the property from Price to the United States Army.

Both parties submitted instructions to the court setting out the elements of theft by
unauthorized control. The jury found Laborde guilty of felony theft, and the district court
sentenced her to a guideline term of 7 months and ordered her to pay restitution. The
Court of Appeals affirmed the conviction in State v. Laborde, No. 107,872, 2013 WL
2395452 (Kan. App. 2013) (unpublished opinion). This court granted Laborde's petition
for review.

The parties have focused their arguments on whether the evidence educed at the
trial sufficed to sustain a conviction for theft by deception. The Court of Appeals
commented that Laborde was correct in her assertion that the State failed to present
sufficient evidence to convict her of theft by deception. The parties reiterated these
arguments before this court on review. At oral argument, Laborde insisted that the State
7



was precluded from even addressing the sufficiency of the evidence question because it
neglected to file a cross-petition for review.

We note that the State is not only not required to cross-petition in an appeal in
which it prevailed in the Court of Appeals, it is precluded from doing so. Supreme Court
Rule 8.03(a)(4)(C) (2014 Kan. Ct. R. Annot. 77), addresses a situation in which the Court
of Appeals reverses a criminal conviction. In such an instance, logically, the State is
required to file a petition for review in order to obtain review of an issue. In the present
case, however, the Court of Appeals affirmed the conviction.

Laborde faults the State for failing to do what we have explicitly told the State that
it is not permitted to do. This court has explicitly held that the State is not permitted to
petition for review from an issue that it won in the Court of Appeals, even if it disagreed
with the rationale:

"We first conclude that the State's petition for review on the correct interpretation
of K.S.A. 2009 Supp. 60-455(d) was improvidently granted. The State has no quarrel
with the Court of Appeals panel's ultimate decision in its favor, that is, the panel's
affirmance of Hart's convictions and sentences. Only a party that is 'aggrieved by a
decision of the Court of Appeals' is eligible to file a petition for review. Rule 8.03(a)
(2012 Kan. Ct. R. Annot. 72). The State does not qualify merely because it would have
preferred a different rationale to support its victory." (Emphasis added.) State v. Hart,
297 Kan. 494, 496, 301 P.3d 1279 (2013).


The issue of the sufficiency of the evidence therefore remains before us.
Prosecutions in this state are based on the charging document, which may be a complaint,
indictment, or information. K.S.A. 22-3201(a). Neither party suggests that there was error
8



in the jury instruction, and both parties restrict their arguments to whether the evidence
supported a conviction of the charged crime, theft by deception.

When the sufficiency of evidence is challenged in a criminal case, the appellate
court reviews all the evidence in the light most favorable to the prosecution. The
conviction will be upheld if the court is convinced that a rational factfinder could have
found the defendant guilty beyond a reasonable doubt based on that evidence. State v.
Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).

In relevant part, K.S.A. 21-3701 defines theft:

"(a) Theft is any of the following acts done with intent to permanently deprive
the owner permanently of the possession, use or benefit of the owner's property:

'(1) Obtaining or exerting unauthorized control over property;

'(2) obtaining by deception control over property;'"

Theft by deception sets out different elements that the State must prove than theft
by unauthorized control. Theft by deception demands a specific kind of proof from the
State. The statutory language demonstrates clearly that the legislature intended to require
the State to prove that the intended victim "was actually deceived and actually relied
upon the false representation in order for the defendant to be found guilty of theft by
deception." State v. Finch, 223 Kan. 398, 402, 573 P.2d 1048 (1978). The statutory
phrase "by deception" indicates an agency or instrumentality as a causative factor. The
State must prove that the defendant "obtained control over another's property by means of
a false statement or representation." 223 Kan. at 404.

9



The Court of Appeals stated:

"Laborde correctly asserts that the jury did not have sufficient evidence to convict her of
theft by deception. The State presented no evidence that Price or the U.S. Army
transferred Price's military gear to Laborde in reliance on a false statement or
representation. Although a host of evidence certainly suggests that Laborde lied about
what she had done with the military gear, these lies were all post facto and therefore did
not induce Price to transfer his military gear to Laborde. [Citation omitted.]" 2013 WL
2395452, at *3.

This holding by the Court of Appeals accurately summarizes the evidence, or the
lack thereof, and is correct. The State did not produce evidence proving one of the
necessary elements of theft by deception–that Laborde obtained control over Price's
property by means of a false statement or representation that deceived Price and on which
he relied. See State v. Fritz, 261 Kan. 294, 299, 933 P.2d 126 (1997). Giving away or
selling Price's property may have been theft by exercising unauthorized control of the
property, but lying about what she had done with the property did not, by itself, constitute
theft. She already had control over the property which was located in the house and on
the land that she occupied; she did not gain control over that property by means of
subsequent misrepresentations.

If the Court of Appeals had ended its analysis at this point, it presumably would
have reversed the conviction and we would simply affirm. The Court of Appeals elected,
however, to proceed to an analysis of invited error. 2013 WL 2395452, at *4. Although
the parties did not argue that Laborde was actually convicted of theft by unauthorized
control, the Court of Appeals decided that the record contained sufficient evidence to
sustain a conviction of that alternative theory of felony theft. The court then held that
Laborde invited the unauthorized control instruction, which precluded her from
complaining about a conviction based on that instruction.
10



The Court of Appeals improperly opened a door to an analysis of an issue that was
not before it. As a general rule, unless there are exceptional circumstances, appellate
courts do not consider issues on appeal that were not raised by the parties. State v.
Adams, 283 Kan. 365, 367, 153 P.3d 512 (2007). Failure to brief and argue an issue
constitutes a concession of an issue by the parties. See, e.g., State v. Godfrey, 301 Kan.
1041, 1043-44, 350 P.3d 1068 (2015); State v. Johnson, 269 Kan. 594, 602, 7 P.3d 294
(2000).

For this reason, we need not and do not evaluate the correctness of the reasoning
employed by the Court of Appeals in concluding that the instruction constituted invited
error. We note only that an instructional error of this type, when properly raised by a
party, demands a deeper inspection of such issues as whether the change constitutes
constructive amendment, whether structural error should apply, and whether courts
should engage in harmless error analysis. See, e.g., United States v. Brandao, 539 F.3d
44, 57 (1st Cir. 2008) (listing and discussing cases); United States v. Thomas, 274 F.3d
655, 670 (2d Cir. 2001) (constructive amendment to charge is per se prejudicial but not
necessarily structural error); United States v. Floresca, 38 F.3d 706, 713 (4th Cir. 1994)
(constructive amendment to charge is structural error); United States v. Hugs, 384 F.3d
762, 768 (9th Cir. 2004) (defendant indicted for involuntary manslaughter on theory he
unlawfully killed the victim without malice "in the commission of an unlawful act," but
jury instruction included alternative theories of commission of lawful act done unlawfully
or lawful act done with reckless or wanton disregard for human life; held to be harmless
because evidence necessary to prove each element contained in indictment was
"essentially uncontroverted" and jury was admonished it could not convict of any conduct
not charged in the indictment). The State did not seek to preserve its case by arguing
constructive amendment, and the issue is not before us.

11



The posture of this case as argued by the parties is not nearly so complicated. This
is, plain and simple, a sufficiency of the evidence appeal. We find that the evidence was
insufficient to convict Laborde of theft by deception.

The judgment of the Court of Appeals affirming the district court is reversed. The
judgment of the district court is reversed.

* * *

ROSEN, J., dissenting.

I agree with the majority that the parties did not present this court with an issue
that opens the door to the invited-error analysis adopted by the Court of Appeals. I
disagree with the conclusion that the evidence was insufficient to sustain a conviction of
theft by deception.

Classic instances of theft by deception might involve Nigerian princes or the
Brooklyn Bridge. The defendant might lie about the authenticity of a document that the
victim is signing, or the defendant might misrepresent the nature of something that the
victim is buying.

The present case offers a different scenario. Here, the defendant lied about where
the victim's property was located. The lies were of two kinds. First, Laborde lied when
she said that certain property was no longer located on the farm where she and Price had
lived together. Specifically, the dress uniform that he sought from her for his hearing in
West Virginia was still in a closet in the house, although she insisted that it had been
returned to Price's or the Army's custody. Second, Laborde lied about keeping property in
a place accessible to Price or the Army when she had actually sold it or given it away.
12



Laborde nevertheless argues on appeal that her deception served the purpose of
concealing her exercise of unauthorized control, not enabling the unauthorized control.
The Court of Appeals accepted this argument, stating in dicta that Laborde's lies "were all
post facto and therefore did not induce Price to transfer his military gear to Laborde."
2013 WL 2395452, *3.

Although the State's theory may present an unusual case of theft by deception, I
would find that the State presented sufficient evidence to sustain a conviction under that
theory. Price's military gear was exclusively subject to Laborde's control because she
placed restraints on his access to their mutual home. The only way that Price could locate
his gear was to rely on Laborde's representations of where the gear was located. That
way, law enforcement, acting on his behalf, could recover the gear, or, much later, Price
could take a one-time attempt to find the gear while he was escorted by law enforcement.
Her dishonest statements created a barrier to Price regaining possession of the gear.

When Laborde stated that the dress uniform was not on the farm and did not
disclose that it was, in fact, in her closet, neither Price nor the police had any reason to
look there among her personal effects. When she stated that other gear was at the
barracks and did not admit that she had placed it in a shed on the farm, she likewise
provided a disincentive for Price to search the outbuildings. She did not have to move the
property off the farm in order to deprive Price of the effective ability to regain
possession. Her deceit precluded Price from obtaining at least some of his property for a
time until she sold it or gave it away. Her denial that she knew where the missing
property was, or her various claims of having returned the property to Price's or the
Army's custody, constituted an exercise of control over the property by means of
deception.

I would affirm the conviction as supported by the evidence educed at trial.