State v. Roth

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NOT DESIGNATED FOR PUBLICATION

No. 113,923

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

AMY JEAN ROTH,
Appellee.


MEMORANDUM OPINION

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed June 24, 2016.
Reversed and remanded with directions.

Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt,
attorney general, for appellant.

Debra J. Wilson, of Capital Appeals and Conflicts Office, for appellee.

Before HILL, P.J, STANDRIDGE and ATCHESON, JJ.

Per Curiam: The State charged Amy Jean Roth with theft of merchandise having
a value of $1,000 to $24,999. After a preliminary examination, the district court bound
Roth over on the charge. A few weeks after the preliminary examination, Roth filed a
motion to dismiss. Following a hearing on the motion, the court dismissed the case with
prejudice. The State appeals from this dismissal, arguing that the district court erred when
it found insufficient evidence to establish probable cause to believe that Roth intended to
permanently deprive the owner of the merchandise at issue. The State also argues that the
district court abused its discretion by dismissing Roth's case with prejudice. For the
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reasons stated below, we agree with the State and, therefore, reverse the decision of the
district court and remand the case for further proceedings.

FACTS

On October 16, 2014, Roth walked out of a Walmart store with a shopping cart
containing $1,076 in merchandise without paying. Roth was arrested and charged with
theft, a severity level 9 nonperson felony, in violation of K.S.A. 2015 Supp. 21-
5801(a)(1).

A preliminary examination hearing was held. During the hearing, the parties
presented testimony from two witnesses and offered several exhibits. The district court
ultimately bound Roth over for trial, finding the evidence presented was sufficient to
establish probable cause to believe that Roth exerted unauthorized control over property
with the intent to permanently deprive the owner of the possession, use, or benefit of the
owner's property. In explaining her decision, the district court judge stated she had no
choice but to bind Roth over for trial because Roth never testified; therefore, the judge
was not able to evaluate Roth's credibility.

About 3 weeks after the preliminary examination hearing, Roth's attorney filed a
motion to dismiss pursuant to K.S.A. 2015 Supp. 22-3208. In the motion, Roth's attorney
noted that she "should have called Ms. Roth to testify" at the preliminary examination.
Roth's attorney requested that a hearing be convened on the motion to dismiss so that
Roth could testify and provide the evidence necessary to support the request for
dismissal. The district court scheduled a hearing on the motion, and Roth testified. At the
conclusion of the hearing, the court granted Roth's motion and dismissed the case with
prejudice.


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ANALYSIS

1. Procedural history

Although a bit confusing, the procedural history of this case is relevant to both the
standard of proof and the standard of review; thus, we begin our analysis of the State's
claims on appeal with a brief overview of the rules of criminal procedure implicated in
this matter.

Criminal cases generally are initiated by the filing of a complaint, which is the
document that sets forth a formal charge against the defendant. The person signing the
complaint must show reasonable cause or probable cause to believe that the defendant
committed the offense. Once a complaint has been filed, the district court either may
issue a warrant for the defendant's arrest or a summons requiring the defendant to appear
at a hearing before the court at a specified time. At this first hearing, the defendant is
advised of his or her rights and the procedures that will be followed.

The defendant (in felony cases) must then decide whether he or she wants a
preliminary examination. See K.S.A. 2015 Supp. 22-2902(1). At a preliminary
examination, the State has the burden to persuade the district court that there is probable
cause to believe that a crime was committed and that the defendant committed it. The
State may present witnesses, physical evidence, and documentary evidence to satisfy this
burden. The defendant has the chance to make responsive arguments, to cross-examine
the government's witnesses, and to present witnesses and other evidence of his or her own
in an effort to show that probable cause is lacking. See K.S.A. 2015 Supp. 22-2902(3).

The preliminary examination hearing is an essential element within Kansas
criminal procedure. Specifically, the preliminary examination hearing preserves the
testimony of witnesses, specifies the nature of the crime charged, identifies at least some
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of the evidence the State will rely on at trial, and affords the accused an opportunity to
challenge the existence of probable cause, a court finding that is necessary to further
detain the accused or require the accused to post bail. State v. Boone, 218 Kan. 482, 485,
543 P.2d 945 (1975), cert. denied 425 U.S. 915, reh. denied 425 U.S. 985 (1976),
superseded by statute on other grounds in State v. Valladarez, 288 Kan. 671, 206 P.3d
879 (2009).

Notably, evidence presented at the preliminary examination hearing does not need
to "prove guilt beyond a reasonable doubt, only probable cause." State v. Washington,
293 Kan. 732, 733-34, 268 P.3d 475 (2012) (citing State v. Sherry, 233 Kan. 920, 935,
667 P.2d 367 [1983]). "'Probable cause at a preliminary examination signifies evidence
sufficient to cause a person of ordinary prudence and caution to conscientiously entertain
a reasonable belief of the accused's guilt.'" Washington, 293 Kan. at 734 (quoting State v.
Berg, 270 Kan. 237, 238, 13 P.3d 914 [2000]). In reviewing the evidence presented at a
preliminary examination hearing, the district court must draw inferences in favor of the
State. The court should find sufficient evidence exists to bind a defendant over for trial
even when the evidence is weak if such evidence tends to show that the offense was
committed and that the defendant committed the offense. Washington, 293 Kan. at 734. If
the prosecutor successfully persuades the court that there is probable cause to believe the
defendant committed the crime charged, the defendant is bound over for trial. If the
prosecutor fails to make an adequate showing at the preliminary examination, the court
may dismiss the case.

If the court binds the defendant over for trial but the accused believes the State
failed at the preliminary examination hearing to bear its burden to show probable cause
that the offense charged was committed and the accused probably committed it, the
accused can challenge the probable cause finding by presenting evidence to rebut the
presumption of correctness. The procedural mechanism for this challenge is a motion to
dismiss under K.S.A. 2015 Supp. 22-3208, in which the accused formally alleges the
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evidence presented at the preliminary examination hearing fails to establish a probability
that the charged offense was committed or that the accused committed it. Washington,
293 Kan. at 734. The court may grant the accused's motion to dismiss only if the
transcript from the preliminary examination hearing reflects a complete lack of evidence
to support a probability that the crime charged was committed and that the accused
committed it. "Any defense or objection which is capable of determination without the
trial of the general issue may be raised before trial by motion." K.S.A. 2015 Supp. 22-
3208(2).

"On appeal from that ruling, an appellate court reviews the district court's probable
cause finding at a preliminary examination de novo." Washington, 293 Kan. at 734. Thus,
we do not consider any of the district court's factual findings. An attempt was made in
State v. Harris, 266 Kan. 610, 614, 975 P.2d 227 (1999), to change the standard of
review to that applicable to negative findings or to require appellate courts to view the
evidence in the light most favorable to the party prevailing below. But our Supreme
Court refused to adopt either argument and continued the standard stated in State v.
Phelps, 266 Kan. 185, 193, 967 P.2d 304 (1998), which was quoted in Harris in the
following manner:

"'"The function of a judge or magistrate at a preliminary [examination] hearing is
not to determine the wisdom of the prosecuting attorney's decision to file and pursue
charges against the defendant. Nor is it the function of the judge to conclude that there
should be no prosecution because the possibility of a conviction may be remote or
virtually nonexistent. [Citation omitted.] The sole question before the judge or magistrate
at the conclusion of a preliminary [examination] hearing is the same question an appellate
court is faced with upon de novo review: whether the evidence is sufficient to cause a
person of ordinary prudence and caution to conscientiously entertain a reasonable belief
of the accused's guilt. [Citation omitted.]"' Phelps, 266 Kan. at 193." Harris, 266 Kan. at
614.

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We are obligated in cases where there is conflicting testimony at the preliminary
examination hearing to accept that version which is most favorable to the State. State v.
Bell, 268 Kan. 764, 764-65, 1 P.3d 325 (2000).

2. Probable cause

Having reviewed the rules of criminal procedure implicated in this matter, we
move on to consider the evidence before the district court (1) at the end of the
preliminary examination, after which the court found probable cause to believe that Roth
intended to permanently deprive Walmart of its property; and (2) at the end of the hearing
on Roth's motion to dismiss, after which the court found there was not probable cause to
believe that Roth intended to permanently deprive Walmart of its property.

Under K.S.A. 2015 Supp. 21-5801(a)(1), theft occurs when a person "[o]btain[s]
or exert[s] unauthorized control over property or services" with the "intent to
permanently deprive the owner of the possession, use or benefit of the owner's property
or services." (Emphasis added.) Thus, a person must have the specific intent of depriving
an owner of his or her property to commit theft. Intent, however, "'may be shown by
circumstantial evidence, and a person is presumed to intend all the natural consequences
of his [or her] acts. [Citation omitted.]'" State v. Kettler, 299 Kan. 448, 467, 325 P.3d
1075 (2014) (quoting State v. Childers, 222 Kan. 32, 37, 563 P.2d 999 [1977]).
Accordingly, the State need only present evidence allowing a factfinder to infer that the
defendant intended to commit theft.

At the preliminary examination, the State presented testimony from Rhonda
Jamison, a Walmart asset possession officer who was on duty at the time the alleged theft
occurred. Jamison testified to the following facts:

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 Jamison noticed a woman, later identified as Roth, with an unusually large
amount of merchandise in her cart.
 Jamison watched Roth place certain items in laundry baskets and reusable
Walmart bags, both of which Roth placed in the cart she was pushing.
 Jamison was trained to look for shoppers concealing items in things like
laundry baskets and bags while shopping. Jamison became particularly
concerned when she saw Roth place a set of sheets in a reusable Walmart
bag and then zip the bag shut.
 Jamison continued to follow Roth around the store for some time. Jamison
observed Roth on the phone for about 10-15 minutes prior to Roth walking
out the door.
 Jamison called her boss to make him aware that Jamison was following
Roth, who had a large amount of merchandise in her cart.
 Jamison noted that the store had four exits: a southeast exit; a middle exit;
a northeast exit; and a garden center exit, which was further north than the
northeast exit.
 Jamison said the garden center exit was locked the day Roth was shopping
and the only cash registers open were located near the southeast exit.
 Jamison watched as Roth pushed her cart from the southeast checkout area,
to the northeast checkout area, to the garden center section, to circling
around a couple of aisles, after which Roth then headed south to the middle
doors, turned around and ultimately left the store through the northeast
doors without paying for the merchandise in her cart.
 Jamison saw the Walmart greeter speak to Roth and then try to get Roth's
attention as she exited through the northeast doors in order to conduct a
receipt check, but Roth "wave[d] him off."
 Jamison said Roth was still on her cell phone as she left the store.
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 Jamison was about 20 feet behind Roth when Roth exited the store. Having
been forewarned, Jamison's supervisor was already outside when Roth
exited the store.
 Jamison and a Walmart manager eventually stopped Roth about 30 feet
outside the northeast exit doors.
 When Jamison told Roth she needed to come back inside, Roth initially
resisted, explaining that she had come outside so she could better hear her
phone call. Roth did end up coming back into the store with Jamison.
 Roth told Jamison that she was distracted and forgot to pay for the
merchandise before she stepped outside to continue her phone conversation.
Roth told Jamison that she would pay for the merchandise.
 Jamison called the police and escorted Roth back to the loss prevention
office. Officer Rex Vickers arrived a short time later.
 Roth told Jamison and the others present in the loss prevention office that
she was shopping for a Parent Teacher Organization (PTO) fundraising
event and was shopping for Halloween crafts to do with her own children.
 Jamison told Officer Vickers that there was a possibility Roth was not
attempting to steal the merchandise. Jamison conceded that she rarely ever
comes to that conclusion in the course of her job as a loss prevention
officer.
 Jamison testified that the total value of the merchandise in Roth's cart at the
time she exited the store was $1,076, before tax.

The defendant presented testimony at the preliminary examination from Officer
Vickers, the Topeka Police Department officer who arrested Roth. Vickers testified to the
following facts:

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 Roth explained to Officer Vickers that the whole incident was a big
misunderstanding. Roth told Vickers she was distracted by the conversation
she was having on the phone and accidentally went out the door without
paying because she needed to get better cell service reception.
 While Roth was being interviewed in the loss prevention office, Roth told
Officer Vickers that she intended to pay for the merchandise, that she
wanted to pay for the merchandise, and that she had the ability to pay for
the merchandise.
 Roth also explained to Officer Vickers that she was shopping for multiple
people and multiple events. Specifically, Roth explained that she was
buying many of the items for a PTO event.

At the end of the hearing, the district court found the evidence presented above
was sufficient to establish probable cause to believe that Roth exerted unauthorized
control over property with the intent to permanently deprive the owner of the possession,
use, or benefit of the owner's property. Based on this finding, the district court bound
Roth over for trial.

After the preliminary examination, Roth's attorney filed a motion to dismiss under
K.S.A. 2015 Supp. 22-3208. At the hearing on the motion to dismiss, Roth testified to the
following facts:

 Roth intended to pay for the items in her cart, but she pushed the cart out of
the store without doing so because she was distracted by a phone call from
her partner about her children.
 Roth was buying in bulk because she was from a small town that did not
have a store equivalent to the size of Walmart.
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 Roth separated the large number of items in her cart into different bags and
laundry baskets because she was shopping for her immediate family, her
mother, and for a PTO event, which she was in charge of planning.
 Roth would have needed a receipt to be reimbursed by the PTO.
 After Roth was released from jail, she bought all the arts and crafts supplies
she needed for the PTO event, held the event, and took photos of the event.
Roth's photos were admitted into evidence.

At the close of evidence, Roth's attorney argued the motion to dismiss should be
granted because, based on the newly introduced testimony from Roth, the State failed to
establish probable cause to believe that Roth intended to commit theft. Considering
Roth's testimony in conjunction with the State's evidence presented at the preliminary
examination, Roth's attorney argued the only evidence that even remotely supported a
conclusion that Roth intended to permanently deprive the owner of the merchandise at
issue was the fact that Roth walked through the doors without paying. The district court
ultimately granted Roth's motion to dismiss, stating:

"What the Court does determine at this point in time is sufficiency of the
evidence and one of the elements that certainly has to be proved by the State, even at the
probable cause level at the sufficiency of evidence stage is the intent, whether the
defendant intentionally exerted unauthorized control over property, in this case, the food
and/or crafts or household items with the intention to permanently deprive the owner
Wal-Mart.
"While the Court did not believe that there was an issue of binding the defendant
over after the preliminary hearing because the Court has to look at the evidence in a light
most favorable to the State, I think we have a different issue now when I've heard directly
from the testimony. What I've heard directly from Miss Amy Roth regarding what was
going on with her on that particular day and also what her intent was. Obviously her
testimony was that she was distraught, distracted. She walks outside of Wal-Mart so that
she can hear the person on the other line better, but that her intent was to make payment,
she testified that she had ability to make that payment of the items in her cart.
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"The Court at this time is going to grant the motion to dismiss. I don't believe that
there's probable cause that the defendant did have the intent to permanently deprive Wal-
Mart of the items in her cart that particular day. So the Court at this time would dismiss
this case with prejudice."

On appeal, the State claims dismissal under K.S.A. 2015 Supp. 22-3208 was
improper in this case because a preliminary examination already had been conducted and
the district court already had found the requisite probable cause to bind Roth over for trial
on the theft charge. We agree with the State. Although the district court was authorized to
hold an evidentiary hearing on Roth's motion to dismiss under K.S.A. 2015 Supp. 22-
3208, the purpose of the hearing was to permit Roth to present evidence to rebut the
finding of probable cause previously made by the court after considering the evidence
presented at the preliminary examination. Again, "'[p]robable cause at a preliminary
examination signifies evidence sufficient to cause a person of ordinary prudence and
caution to conscientiously entertain a reasonable belief of the accused's guilt.'"
Washington, 293 Kan. at 734 (quoting Berg, 270 Kan. at 238). Notably, "'[t]he court's
role is not to determine the wisdom of the decision to file charges or to determine
whether the possibility of a conviction is likely or remote.'" State v. Fredrick, 292 Kan.
169, 171-72, 251 P.3d 48 (2011) (quoting State v. Anderson, 270 Kan. 68, 71, 12 P.3d
883 [2000]). The court must draw all inferences in favor of the prosecution. Washington,
293 Kan. at 734. Thus, when there is conflicting evidence, the trial judge "must accept
the version of the testimony which is most favorable to the State." Bell, 268 Kan. at 764-
65. "Even where the evidence is weak, the defendant should be bound over for trial if the
evidence tends to disclose that the offense charged was committed and that the defendant
committed it." Washington, 293 Kan. at 734.

In this case, Roth's testimony at the hearing on the motion to dismiss did not
render null and void the initial facts upon which the court based its finding of probable
cause at the preliminary hearing. At most, Roth's testimony created a dispute in material
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fact on the issue of whether she intended to permanently deprive Walmart of the
merchandise in her cart. Conflicting evidence in witness testimony creates a question of
fact for the jury. See State v. Corbett, 31 Kan. App. 2d 68, Syl. ¶ 2, 59 P.3d 1054, rev.
denied 275 Kan. 966 (2003). Here, there was conflicting evidence regarding whether
Roth intended to commit the theft. Whether Roth actually intended to commit the theft
constituted a question of fact for the jury to decide. Roth's motion to dismiss was
improper under the plain language of K.S.A. 2015 Supp. 22-3208(2) because Roth did
not raise an objection that could be determined without a trial on the general issue.

In summary, no matter how sympathetic Roth's explanation regarding why she
exited Walmart without paying may be, the State presented evidence that would cause a
person of ordinary prudence and caution to entertain a reasonable belief that Roth
intended to permanently deprive Walmart of the items in her cart. Because the State
presented this evidence, the district court was required to resolve all inferences regarding
Roth's intent in the State's favor. The district court erred in failing to do so.

3. Dismissal with prejudice

An appellate court reviews the trial court's decision to dismiss the defendant's
charges with prejudice for an abuse of discretion. State v. Ralston, 43 Kan. App. 2d 353,
357, 225 P.3d 741 (2010), rev. denied 291 Kan. 916 (2011). "Judicial discretion can be
abused in three ways: (1) if no reasonable person would have taken the view adopted by
the trial court; (2) if the judicial action is based on an error of law; or (3) if the judicial
action is based on an error of fact. [Citation omitted.]" State v. Mosher, 299 Kan. 1, 3,
319 P.3d 1253 (2014).

In its brief, the State argues that the district court abused its discretion by
dismissing Roth's theft charge with prejudice. But because we have found the district
court erred by dismissing Roth's theft charge in the first instance, it follows that the court
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abused its discretion by dismissing Roth's charge with prejudice. Again, in dismissing
Roth's theft charge, the court failed to "accept the version of the testimony which is most
favorable to the State" when presented with conflicting evidence. See Bell, 268 Kan. at
764-65. Moreover, dismissal was improper under the plain language of K.S.A. 2015
Supp. 22-3208(2) given that Roth's motion to dismiss raised a question of fact that could
not be properly decided without a trial. Consequently, the district court abused its
discretion by dismissing Roth's case with prejudice because its ruling was based on an
error of law.

Reversed and remanded for further proceedings.