State v. Sood

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No. 105,930

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BALDHIR SOOD,
Appellant.


SYLLABUS BY THE COURT

1.
Computer fraud is a specific intent crime.

2.
The determination whether a criminal statute is a general intent or a specific intent
crime is a legal question over which appellate courts have unlimited review.

3.
When a crime requires a specific intent, that specific intent element must be
included in the charge and in the instructions of the court covering the separate elements
of the crime.

Appeal from Johnson District Court; STEPHEN R. TATUM, judge. Opinion filed July 27, 2012.
Affirmed in part, reversed in part, and remanded with directions.

Rebecca L. Kurz, of Morgan Pilate LLC, of Olathe, for appellant.

Andrew D. Bauch, assistant attorney general, Kristafer Ailslieger, assistant solicitor general, and
Derek Schmidt, attorney general, for appellee.
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Before GREEN, P.J., MALONE and MCANANY, JJ.

GREEN, J.: Baldhir Sood appeals from his convictions by a jury of one count of
computer fraud, in violation of K.S.A. 21-3755, and one count of attempted theft, in
violation of K.S.A. 21-3301 and K.S.A. 21-3701. On appeal, Baldhir argues that the trial
court erred in denying his request for a jury instruction on ignorance or mistake of fact.
We agree and reverse. Baldhir also argues that the State failed to present sufficient
evidence to convict him of computer fraud. We disagree and affirm. Finally, Baldhir
argues that the State failed to present sufficient evidence to convict him of attempted
theft. We disagree and affirm.

Because the attempted theft charge is so closely interwoven with the computer
fraud charge, and because we are reversing the computer fraud conviction based on the
trial court's failure to give the ignorance or mistake of fact instruction and a specific
intent instruction concerning the computer fraud charge, we reverse the attempted theft
conviction as well and remand both the computer fraud and attempted theft charges for a
new trial.

In 2009, the Security Division of the Kansas Lottery (Lottery), as part of its
Retailer Honesty Assurance Program, conducted a sting operation to test the integrity of
the state lottery. The purpose of the sting operation was to "ensure that every player ha[d]
a fair chance of being paid if they [had] a winning ticket." As part of the sting operation,
the Lottery made counterfeit scratch off tickets for its Scrabble game. When scanned, the
counterfeit ticket (sting ticket) would appear to have a prize value of $25,000. To
implement the sting operation, the Lottery sent an undercover Lottery enforcement agent
to various stores around the state. The agent, dressed in street clothes, would enter the
store with a sting ticket and an authentic nonwinning ticket. Then, the agent would
present both tickets to the clerk to see if either ticket was a winning ticket. If possible, the
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agent would try to appear distracted to give the clerk the opportunity to check the tickets
without the agent seeing the results.

Once a store clerk received the tickets from the agent, he or she would have to
enter a three-digit code printed on the ticket and would have to scan the ticket's bar code
at the lottery terminal to determine if the ticket was a winner. Generally, when a clerk
scanned a winning ticket, the terminal would display one of two messages. If the value of
the winning ticket was less than $600, the terminal would display "winner" and would
show the prize amount, which could be paid by the store clerk immediately. If the prize
value of the ticket was $600 or more, then the terminal display would display "Claim at
Lottery." Moreover, the terminal would play either You're in the Money or Beethoven's
Fifth Symphony if the ticket was a winning ticket. When a losing ticket was scanned,
however, the lottery terminal would not produce sound but merely displayed, "Sorry not a
winner." Under the sting operation, the agent's actions were dependent on the actions of
the store clerk. If the agent was told by the clerk that the sting ticket was a winner, he
took the ticket back and left the store. But if the agent was told that the sting ticket was
not a winner, he or she would do the following:

"I would—if it was said in a manner that it was clear, I would say, Thank you,
and walk out of the store. If it was said in a manner that was a little bit ambiguous, I
would ask, Are you sure it's not a winner, or Is it not a winner, or Neither ticket's a
winner? And then I would leave once being told that the ticket was not a winning ticket."

On July 29, 2009, Agent Paul Schliffke went to a Shell gas station in Johnson
County, Kansas, to conduct the sting operation. The station that Schliffke went to was
owned by Baldhir and his wife Jiwan Jyoti Sood. Baldhir was working as the clerk when
Schliffke entered the store. After Schliffke entered the store, he purchased a bottle of
water and presented Baldhir with the sting ticket and an authentic losing ticket in
accordance with the sting operation. Baldhir scanned the tickets and told Schliffke that he
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did not have a winning ticket. Schliffke then asked Baldhir, "Neither one?" and Baldhir
responded that neither ticket was a winner. Neither You're in the Money or Beethoven's
Fifth Symphony played when Baldhir scanned the tickets. Schliffke left the tickets with
Baldhir and left the store.

The next day Jiwan called the Lottery headquarters and asked about the value of
the sting ticket. Jiwan's call was directed to Schliffke. After Schliffke confirmed that
Jiwan possessed the sting ticket, he asked her if the ticket was hers. Jiwan stated that the
ticket was hers. Schliffke asked Jiwan how much she thought the ticket was worth, and
she stated $25,000.

On August 12, 2009, Jiwan went to the Lottery headquarters to fill out a claim
form for the sting ticket along with an application to be a lottery retailer at another store
owned by her and Baldhir. After Jiwan filled out the paperwork, Schliffke asked her
questions about the sting ticket. At first, Jiwan told Schliffke that Baldhir had purchased
the sting ticket 2 weeks ago and that she had scratched the ticket. After Schliffke
confronted Jiwan, however, she changed her statement and said that Baldhir gave her the
sting ticket, which he thought was a winning ticket. Specifically, Jiwan stated that
Baldhir had scanned several tickets without getting a read-out message from the terminal.
Thus, Baldhir asked a customer what this meant, and the customer told Baldhir that the
sting ticket was a winning ticket and suggested that he call the Lottery office.

Later, the State charged Baldhir with one count of computer fraud, in violation of
K.S.A. 21-3755, and one count of attempted theft, in violation of K.S.A. 21-3301 and
K.S.A. 21-3701. Baldhir's case proceeded to a trial by jury. At trial, Baldhir testified that
Schliffke came into the store, bought a drink, and asked him to check two lottery tickets.
Baldhir then scanned the tickets at the terminal, but because no music played when he
scanned the tickets, he believed that neither ticket was a winner. Baldhir further testified
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that after he scanned the tickets, he threw them in the trash without looking at the
terminal display.

About 10 minutes later, one of the Soods' regular customers came into the store
with some lottery tickets to check. Baldhir told the customer that he thought the terminal
was not working properly, but he allowed the customer to check his tickets at the terminal
anyway. The customer also checked the tickets from the trash. After the customer
checked the sting ticket, he gave the ticket to Baldhir, who wrote a note on the ticket
saying that it was a winning ticket. Baldhir then placed the sting ticket, along with the
note, in the cash drawer.

Regina Moore, another one of the Soods' regular customers, testified on Baldhir's
behalf and corroborated his version of the events. Moore testified that a man came into
the store and asked if he could check his lottery tickets. Moore testified that Baldhir told
the customer that the machine was not working but that he could go ahead and try to
check his tickets. The customer put a ticket in the lottery machine and removed a ticket
from the trash and put it in the machine as well. Next, Moore testified that Baldhir took
from the customer a ticket that had been removed from the trash, that Baldhir wrote
something on it, and that Baldhir placed it in the cash register.

After the close of evidence, the parties had a jury instruction conference with the
trial court to determine the appropriate jury instructions. During the conference, Baldhir's
counsel requested an instruction on ignorance or mistake of fact modeled after PIK Crim.
3d 54.03. The trial court denied Baldhir's counsel's jury instruction request. The jury
found Baldhir guilty on both counts. The trial court sentenced Baldhir to an underlying
controlling sentence of 8 months in prison and granted him probation for a term of 18
months.
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Is Computer Fraud under K.S.A. 21-3755(b)(1)(B) a Specific Intent Crime?

Before we can address the merits of Baldhir's arguments, we first must determine
if a violation of K.S.A. 21-3755(b)(1)(B), the computer fraud statute, is a specific intent
crime. The State maintains that Baldhir was not entitled to the ignorance or mistake of
fact instruction because a violation of the computer fraud statute is not a specific intent
crime. On the other hand, Baldhir argues that the computer fraud statute is a specific
intent crime. The determination whether a criminal statute is a general intent or a specific
intent crime is a legal question over which appellate courts have unlimited review. State
v. Richardson, 289 Kan. 118, 121, 209 P.3d 696 (2009).

The parties have not cited a case and our research has not revealed a case that
decides this specific issue.

The computer fraud statute under which Baldhir was convicted provides in
relevant part:

"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, services or any other
thing of value by means of false or fraudulent pretense or representation." (Emphasis
added.) K.S.A. 21-3755(b)(1)(B).

"[Kansas] appellate courts have consistently interpreted statutes that define a crime
by using the phrase 'with intent to' as requiring a specific intent element." Richardson,
289 Kan. at 122. Our appellate courts have enumerated examples of specific intent
crimes. See, e.g., In re C.P.W., 289 Kan. 448, 454-55, 213 P.3d 413 (2009); State v. Diaz,
44 Kan. App. 2d 870, 874, 241 P.3d 1018, rev. denied 291 Kan. 913 (2011).
Nevertheless, inclusion of intent language in a statute does not automatically show that
the legislature intended to create a specific intent crime. See, e.g., State v. Makthepharak,
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276 Kan. 563, 572, 78 P.3d 412 (2003) (aggravated battery is not a specific intent crime);
State v. Campbell, 30 Kan. App. 2d 70, 73, 39 P.3d 97, rev. denied 273 Kan. 1037
(2002).

Specific intent crimes refer to intent to commit a further act or achieve a future
consequence. Our Supreme Court made precisely this point in Richardson: "The
distinction between general intent and specific intent crimes is 'whether, in addition to the
intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or
requires a further particular intent which must accompany the prohibited acts.' [Citation
omitted.]" Richardson, 289 Kan. at 121. K.S.A. 21-3755(b)(1)(B) proscribes the
fraudulent use of a computer "with the intent to defraud." (Emphasis added.) An "'[i]ntent
to defraud requires a willful act by the defendant with the specific intent to deceive or
cheat, usually for the purpose of getting financial gain for one's self or causing financial
loss to another.' [Citation omitted.]" United States v. Howard, 619 F.3d 723, 727 (7th Cir.
2010).

Similarly, K.S.A. 21-3755(b)(1)(B) contains reference to an intent to do a further
act or achieve a future consequence. For example, in addition to using a computer to
devise or execute a scheme or artifice either to defraud or for the purpose of obtaining
money, property, services or any other thing of value by means of false or fraudulent
pretense or representation, K.S.A. 21-3755(b)(1)(B) requires a further act of a defendant:
that the defendant acted with the intent to defraud.

The computer fraud statute under which Baldhir was convicted prohibits two
distinct types of conduct using a computer: (1) to defraud or (2) to obtain money,
property, services or any other thing of value by means of false or fraudulent pretense or
representation. K.S.A. 21-3755(b)(1)(B). Here, the State charged Baldhir only under the
second prong of this statute. Both prongs of this statute require a specific intent element.
To illustrate, both prongs require the devising or executing of a scheme or artifice with
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intent (1) to defraud or (2) to obtain money, property, services or any other thing of value
by means of false or fraudulent pretense or representation. If the scheme or artifice is
reasonably calculated to deceive a person of ordinary intelligence, the devising or
execution of that scheme or artifice is relevant to show that the defendant has acted with
the intent to defraud.

Without a trial court instructing the jury on the specific intent element—that the
defendant devised or executed a scheme or artifice with the intent (1) to defraud or (2) to
obtain money, property, services or any other thing of value by means of false or
fraudulent pretense or representation—the defendant could be convicted of computer
fraud without any intent on the defendant's part to deceive or cheat someone. Thus,
K.S.A. 21-3755(b)(1)(B) is a specific intent crime.

We need not analyze the requisite intent for attempt, as our Supreme Court has
interpreted attempt as a specific intent crime. See State v. Brown, 291 Kan. 646, 654, 244
P.3d 267 (2011). Thus, we move to our next question: Did the trial court commit
reversible error in failing to give an instruction on ignorance or mistake of fact?

Standard of Review

The standard of review for a trial court's failure to give a jury instruction depends
on whether the defendant requested or objected to the instruction. In this case, Baldhir
requested the ignorance or mistake of fact instruction. Thus, the standard of review is as
follows:

"When a party has objected to an instruction at trial, the instruction will be
examined on appeal to determine if it properly and fairly states the law as applied to the
facts of the case and could not have reasonably misled the jury. In making this
determination an appellate court is required to consider the instructions as a whole and
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not isolate any one instruction." State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525
(2009).

"'When the trial court refuses to give a requested instruction, an appellate court must
review the evidence in a light most favorable to the party requesting the instruction.'"
State v. Ransom, 288 Kan. 697, 713, 207 P.3d 208 (2009).

"'"A defendant is entitled to instructions on the law applicable to his or her theory of
defense if there is evidence to support the theory. However, there must be evidence
which, viewed in the light most favorable to the defendant, is sufficient to justify a
rational factfinder finding in accordance with the defendant's theory."'" State v. Hendrix,
289 Kan. 859, 861, 218 P.3d 40 (2009).

Jury Instructions

Baldhir argues that the trial court committed reversible error in refusing to give an
instruction on ignorance or mistake of fact patterned on PIK Crim. 3d 54.03. Specifically,
Baldhir argues that the trial court erred in refusing to give an ignorance or mistake of fact
instruction because it viewed the evidence in the light most favorable to the State instead
of the light most favorable to him. On the other hand, the State maintains that Baldhir
was not entitled to the ignorance or mistake of fact instruction because he presented
insufficient evidence to "justify a rational factfinder finding in accordance with a mistake
of fact instruction."

Baldhir's primary defense theory was that he did not know the sting ticket was a
winning ticket when he scanned it. Indeed, Baldhir's counsel relied on this theory during
opening and closing argument, and Baldhir testified in conformance with this defense
theory at trial. In particular, Baldhir testified that he mistakenly believed the sting ticket
was not a winning ticket because the lottery terminal did not play music when he scanned
the ticket. Moreover, Baldhir testified that he relies primarily on the music to determine if
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a ticket is a winner and that he did not check the message on the terminal when he
scanned Schliffke's tickets because he was busy. When a lottery terminal is functioning
properly, it will play music if a winning ticket is scanned. At trial, Schliffke, who
testified for the State, stated that he did not hear music when Baldhir scanned the sting
ticket. The lottery terminal's failure to play music as it was designed to do when a
winning ticket is scanned, coupled with Baldhir's failure to check the terminal message,
supports Baldhir's assertion that he did not know the sting ticket was a winning ticket
when he scanned it.

In addition, Baldhir maintains that the State's evidence failed to show that the
lottery terminal was working properly when he scanned the tickets. In other words, if the
lottery terminal was not working properly, Baldhir would not have known the sting ticket
was a winning ticket when he scanned it. At trial, Schliffke testified that after he gave
Baldhir the tickets, he turned his back to the register. Thus, Schliffke did not see whether
"Claim at Lottery" was displayed on the terminal when Baldhir scanned the tickets. To
support his position on appeal, Baldhir relies on a 42-page report, marked as Exhibit A,
that was admitted into evidence at trial. The report showed all of the transactions from
July 29, 2009, that occurred on the lottery terminal in Baldhir's store. Baldhir notes that
the following error codes occurred on the terminal throughout the day:

"[A]n error code reading '#SYND_BAD_EXTERN_RECID' occurred at 3:22:46, the first
entry of the day. . . . That same error code appeared four more times at 5:15, fifteen times
between 17:06:18 and 18:16:47, and five times at 19:04:06. An error code reading
'#BADRED' occurred 39 times throughout the day, both before and after [Baldhir]
scanned Mr. Schliffke's tickets. An error code reading '179' occurred ten times from
17:09:08 to 17:14:07."

Because the report showed that the terminal had numerous errors throughout the day, an
inference can be made that the terminal was not working properly when Baldhir scanned
the tickets. If the terminal was not working properly because it failed to play music or
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show the appropriate message, Baldhir would not have known that the sting ticket was a
winning ticket when he scanned it.

Viewed in the light most favorable to Baldhir, these facts support his argument
that the trial court should have given an ignorance or mistake of fact instruction. In other
words, this evidence would be sufficient to justify a rational factfinder finding in
accordance with Baldhir's defensive theory under both his computer fraud and attempted
theft charges. Consequently, the trial court erred in refusing to give the ignorance or
mistake of fact instruction based on the State's charges that Baldhir had committed
computer fraud and attempted theft on July 29, 2009. The trial court's error, however,
does not end our analysis. Next, we must determine if the trial court's refusal to give the
instruction was reversible error.

Reversible Error

When determining if the trial court's failure to give a requested jury instruction is
reversible error,

"an appellate court cannot consider the requested instruction in isolation. Rather, the
court must consider all of the instructions together as a whole. If the instructions as a
whole properly and fairly state the law as applied to the facts of the case, and the jury
could not reasonably be misled by them, the instructions are not reversible error even if
they are in some way erroneous." State v. Jackson, 280 Kan. 541, 550, 124 P.3d 460
(2005).

The computer fraud instruction under which the jury convicted Baldhir stated the
following:

"The defendant is charged with committing a computer crime. The defendant
pleads not guilty.
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"To establish this charge, each of the following claims must be proved:
"1. That the defendant used a computer or computer network for the
purpose of executing a scheme for the purpose of obtaining property by
means of false or fraudulent pretense or representation.
"2. That this act occurred on or about the 29th day of July, 2009, in
Johnson County, Kansas."

The trial court gave a presumption of intent instruction which read as follows:

"Ordinarily, a person intends all of the usual consequences of his voluntary acts.
This inference may be considered by you along with all the other evidence in the case.
You may accept or reject it in determining whether the State has met its burden to prove
the required criminal intent of the defendant. This burden never shifts to the defendant."

But this instruction stating that "a person intends all of the usual consequences of his
voluntary acts" is "'a rule of evidence and does not fulfill the required element of criminal
intent necessary for conviction in those cases where criminal intent is a necessary
element of the offense.' [Citation omitted.]." State v. Mason, 238 Kan. 129, 135-36, 708
P.2d 963 (1985). Because we have determined that computer fraud is a specific intent
crime, the presumption of intent instruction would have been insufficient to apprise the
jury that it could convict Baldhir only if it was proven beyond a reasonable doubt that he
carried out "a scheme for the purpose of obtaining property by means of false or
fraudulent pretense or representation" with the intent to defraud.

Moreover, the trial court is required to include the specific intent element in the
jury instructions: "When a crime requires a specific intent, that specific intent element
'must be included in the charge and the instructions of the court covering the separate
elements' of the crime." Richardson, 289 Kan. at 121. Here, the specific intent element
was not included in the trial court's jury instructions.

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Without the trial court instructing the jury on the specific intent element—that
Baldhir devised or executed a scheme or artifice with the intent to obtain money,
property, services or any other thing of value by means of false or fraudulent pretense or
representation—the trial court's instructions that it gave to the jury did not preclude a
conviction of Baldhir on the basis of mistake. Thus, the trial court committed reversible
error in failing to include the specific intent element in the jury instructions and to give an
ignorance or mistake of fact instruction for Baldhir's computer fraud charge.

Moreover, the computer fraud charge and the attempted theft charges are so
closely interwoven that the outcome of the computer fraud charge will most likely
determine the outcome of the attempted theft charge. Because we are reversing the
computer fraud conviction, we reverse the attempted theft conviction as well and remand
both the computer fraud and the attempted theft charges for a new trial.

Insufficiency of Evidence

Baldhir contends that the State failed to present sufficient evidence to convict him
of computer fraud and attempted theft. To determine whether evidence is sufficient to
uphold a conviction, we apply the following standard of review:

"When the sufficiency of the evidence is challenged in a criminal case, the
standard of review is whether, after a review of all the evidence, viewed in the light most
favorable to the prosecution, the appellate court is convinced that a rational factfinder
could have found the defendant guilty beyond a reasonable doubt." State v. McCaslin,
291 Kan. 697, Syl. ¶ 7, 245 P.3d 1030 (2011).

Moreover, in determining whether there is sufficient evidence to support a
conviction, an 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). It is only in rare cases
where the testimony is so incredible that no reasonable factfinder could find guilt beyond
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a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5-
6, 660 P.2d 945 (1983).

Computer Fraud Charge

In examining the evidence in the light most favorable to the State, the State
presented sufficient evidence for a rational juror to have found Baldhir guilty of computer
fraud. During the trial, the State called Robert Heptig and Casey Fulton as witnesses.
Both Heptig and Fulton were employees of GTECH Corporation (GTECH), a worldwide
lottery gaming company that provides support to the Kansas Lottery. Specifically,
GTECH provides hardware and software for the lottery games. Moreover, it provides
field support to the stores that carry lottery games. Heptig, who was a supervisor of
GTECH service technicians, explained GTECH's field support procedures. The field
service technicians were to ensure that the lottery terminals were operating properly,
along with performing preventive maintenance on the terminals. When a store had a
problem with a terminal, they called a GTECH hotline. The GTECH hotline kept track of
when a call was placed and where that call came from.

The State maintains that there was no indication from GTECH's internal
documents that the lottery terminal was malfunctioning when Baldhir scanned the sting
ticket. To support its argument, the State relies on the testimony of Fulton. During the
trial, Fulton—one of GTECH's quality assurance employees—testified that the internal
code errors from the 42-page report would not have been displayed on Baldhir's terminal.
Instead, Baldhir's terminal would have displayed "winner" or "Sorry not a winner."
Moreover, the State notes that Baldhir did not call GTECH for service support when he
scanned Schliffke's ticket. If the terminal was malfunctioning as Baldhir maintained, then
someone from the store would have called GTECH's support hotline. Because Baldhir
failed to do so, an inference can be made that the terminal was functioning properly.
Fulton did admit, however, that someone from the Soods' store placed service calls to
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GTECH at 5:21:42 p.m. and 6:15:02 p.m. But the State points out that these calls were
too remote from when Baldhir scanned the earlier sting ticket to support his position that
the terminal was not working properly. In other words, simply because the terminal was
having issues between 5 and 6 p.m. does not necessarily mean that the terminal was
malfunctioning when Baldhir scanned the sting ticket at 11:55:15 a.m.

The State also relies on Baldhir's experience with the lottery terminals to support
its position that it presented sufficient evidence. At trial, Baldhir testified that he had sold
lottery tickets for over 7 years and that he was familiar with the terminal's readout based
on the value of the ticket, i.e., if a ticket was worth $600 or more, the display would read
"Claim at Lottery," and if the ticket was worth less than $600, the display would read
"winner" and would state the amount of the prize. Based on Baldhir's experience, an
inference can be made that he scanned the ticket, realized it was worth a large amount,
and decided to keep it for himself because Schliffke's back was turned when Baldhir
scanned the sting ticket.

Finally, the State relies on Baldhir's 18-year marriage to Jiwan, coupled with
Jiwan's actions in attempting to claim the prize money. Specifically, the State maintains
that

"[b]ased on the evidence, a reasonable jury could conclude that [Baldhir] took the ticket,
and asked his wife to claim it at the Lottery. On July 30, 2009, the day after Schliffke
presented the [sting] ticket, Jiwan Sood called the Lottery, claimed she owned the ticket,
confirmed the $25,000 prize, and wanted a check issued that day."

After viewing the evidence in the light most favorable to the State, we determine that the
evidence was sufficient for a rational juror to have found Baldhir guilty of computer
fraud beyond a reasonable doubt.

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Attempted Theft Charge

The State also presented sufficient evidence for a rational juror to have found
Baldhir guilty of attempted theft. The State points to the following evidence in support of
Baldhir's attempted theft conviction: that Baldhir had sold lottery tickets for over 7 years;
that he was familiar with how lottery terminals worked; that there was no indication from
GTECH's internal documents that the lottery terminal was malfunctioning when Baldhir
scanned the sting ticket; and that Baldhir's wife, with whom he had shared an 18-year
marriage, called the Lottery office the day after her husband had scanned the sting ticket,
claiming that she owned the sting ticket, confirming the prize amount of $25,000 for the
sting ticket, and requesting a check for that amount the same day.

Viewing the evidence in the light most favorable to the State, we determine that
the evidence was sufficient for a rational juror to have found Baldhir guilty of attempted
theft beyond a reasonable doubt.

Affirmed in part, reversed in part, and remanded with directions.