State v. Smith

NOT DESIGNATED FOR PUBLICATION

No. 123,783

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MARNEZ L. SMITH,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed April 1, 2022.
Affirmed.

James M. Latta, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before HILL, P.J., POWELL and CLINE, JJ.

PER CURIAM: Marnez L. Smith appeals from his convictions and sentences for
one count of unlawful acts concerning computers and one count of felony theft. Smith
argues there was insufficient evidence to support his conviction for unlawful acts
concerning computers, asserting the specific subsection under which he was convicted
contains an alternative means for committing the crime and the State failed to prove one
of the alternative means. Smith further argues the district court erred in failing to give the
jury a unanimity instruction on the felony theft charge even though the State's complaint
alleged he engaged in a common scheme or course of conduct involving two or more

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separate acts of theft. Finally, Smith argues the district court erred in ordering restitution
in excess of the actual harm caused by his crimes of conviction. Finding no reversible
error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2018, Smith was hired to work as teller for EquiShare Credit Union in
Wichita. After a two-week training period, Smith went to work in EquiShare's main
office. Smith's employment at EquiShare did not go well and did not last long. He was
ultimately fired on August 31, 2018, after he approached another employee and asked to
borrow money, which was a violation of EquiShare's employment policies. There had
also been several instances during his employment in which there were inconsistencies in
Smith's drawer balance.

In August 2018, an EquiShare customer, John Nash, received his monthly
statement and noticed a $200 withdraw from his account, which neither he nor his wife
had authorized. Nash reported the transaction to EquiShare, and EquiShare's senior vice
president, Freda Reynolds, investigated the matter. Reynolds discovered Smith had been
the teller for Nash's disputed transaction, and Nash had not signed for the withdraw.
Reynolds reviewed all of Smith's register receipts for any withdraws that did not have a
customer's signature and found three additional transactions. Reynolds looked at security
footage from the time of the transactions and found neither Nash nor the other affected
customers were present at the time of the withdraws. In total, Reynolds determined Smith
withdrew $3,200 from the four affected accounts without the account holders'
authorization.

The State charged Smith with one count of felony theft and one count of unlawful
acts concerning computers. A jury convicted him as charged. At sentencing, the district
imposed a 14-month prison sentence but placed Smith on probation from that sentence

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for 12 months. The district court also ordered Smith to pay $4,100 in restitution, to which
Smith did not object.

Smith timely appeals.

I. K.S.A. 2018 SUPP. 21-5839(a)(2) DOES NOT CONTAIN ALTERNATIVE MEANS OF
COMMITTING THE CRIME.

Smith argues there was insufficient evidence to support his conviction for
unlawful acts concerning computers under K.S.A. 2018 Supp. 21-5839(a)(2), which
provides it is unlawful to

"use 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 to
obtain money, property, services or any other thing of value by means of false or
fraudulent pretense or representation."

While Smith concedes there was sufficient evidence to show he executed a scheme
to obtain money, property, services, or anything of value by false or fraudulent pretense
or representation, he argues there was no evidence he executed a scheme with the intent
to defraud. Smith asserts K.S.A. 2018 Supp. 21-5839(a)(2) contains an alternative means
for committing the crime—acting with the intent to defraud—which is a distinct
alternative means of committing the crime as opposed to acting with intent to obtain
money, property, services, or any other thing of value by means of false or fraudulent
pretense or representation.

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 Standard of Review

"An alternative means crime is one that can be committed in more than one way.
[Citations omitted.]" State v. Rucker, 309 Kan. 1090, 1094, 441 P.3d 1053 (2019).
Whether a statute provides alternative means is an issue of statutory interpretation, which
presents a question of law subject to our unlimited review. State v. Brown, 295 Kan. 181,
193-94, 284 P.3d 977 (2012). We need not otherwise consider the sufficiency of the
evidence if the statute simply provides options within a means because Smith concedes
there was sufficient evidence he acted with an "intent to . . . obtain money, property,
services or any other thing of value by means of false or fraudulent pretense or
representation." K.S.A. 2018 Supp. 21-5839(a)(2).

Discussion

Although Smith may be correct that there was insufficient evidence to show he
acted with an intent to defraud, he is not entitled to relief because he fails to establish
K.S.A. 2018 Supp. 21-5839(a)(2) contains alternative means for committing the crime of
unlawful acts concerning computers. "Alternative means are legislatively determined,
distinct, material elements of a crime, as opposed to legislative descriptions of the
material elements or of the factual circumstances that would prove the crime." State v.
Foster, 298 Kan. 348, Syl. ¶ 4, 312 P.3d 364 (2013). "'The legislature typically signals its
intent to create an alternative means by "separating alternatives into distinct subsections
of the same statute."' [Citations omitted.]" State v. Butler, 307 Kan. 831, 841, 416 P.3d
116 (2018). Here, the Legislature did so by creating alternative means for committing
unlawful acts concerning computers in subsections (a)(1) through (a)(5) of K.S.A. 2018
Supp. 21-5839. Thus, it seems illogical for us to infer a legislative intent to create an
additional internal alternative means within subsection (a)(2) when the Legislature could
have simply separated the "intent to defraud" and the "intent to . . . obtain money,

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property, services or any other thing of value by means of false or fraudulent pretense or
representation" into separate statutory subsections.

The name of the statute says what it means and means what it says; it is about
"[u]nlawful acts concerning computers." K.S.A. 2018 Supp. 21-5839. The relevant
conduct criminalized under subsection (a)(2) is the "use [of] a computer, computer
system, computer network or any other property for the purpose of devising or executing
a scheme or artifice . . . ." (Emphases added.) K.S.A. 2018 Supp. 21-5839(a)(2). The
specified object of the "scheme or artifice" is engaging in dishonest conduct. K.S.A. 2018
Supp. 21-5839(a)(2). That dishonest conduct can be reflected by either an intent to
defraud or an intent to obtain property or other items of value through false or fraudulent
pretense or representation. But an intent to defraud or an intent to act under false or
fraudulent pretense or representation is effectively a distinction without a difference
based on the structure of the statute. These are "legislative descriptions . . . of the factual
circumstances that would prove the crime." Foster, 298 Kan. 348, Syl. ¶ 4. Whether a
person engages in fraud or acts under false pretense or representation, the person cannot
act honestly; there is no honest fraud, and there is no truthful falsehood.

In our view, Smith focuses too much on the conjunction "or" in the statutory
language "intent to defraud or to obtain . . . by means of false or fraudulent pretense or
representation." (Emphasis added.) K.S.A. 2018 Supp. 21-5839(a)(2). Smith's argument
is unpersuasive because there is no meaningful distinction within subsection (a)(2)
between "intent to defraud" and "intent to . . . obtain . . . [something] of value by means
of false or fraudulent pretense or representation." (Emphases added.) K.S.A. 2018 Supp.
21-5839(a)(2). An "intent to defraud" is an intent "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." (Emphases
added.) K.S.A. 2020 Supp. 21-5111(o). The deception needed to defraud someone
necessarily requires a "false or fraudulent pretense or representation" by the person

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committing the fraud. K.S.A. 2018 Supp. 21-5839(a)(2); see K.S.A. 2020 Supp. 21-
5111(o). And someone who intends to "obtain money, property, services or any other
thing of value by means of false or fraudulent pretense or representation" necessarily
affects another person's "right . . . with reference to property." (Emphases added.) K.S.A.
2020 Supp. 21-5111(o); K.S.A. 2018 Supp. 21-5839(a)(2).

We hold K.S.A. 2018 Supp. 21-5839(a)(2) does not contain alternative means of
committing the crime. As a result, sufficient evidence supports Smth's conviction for
unlawful acts concerning computers.

II. THE DISTRICT COURT DID NOT ERR IN FAILING TO SUA SPONTE GIVE THE JURY A
MULTIPLE ACTS INSTRUCTION OF THE FELONY THEFT CHARGE.

Smith also argues the district court erred in failing to give, sua sponte, a multiple
acts instruction to the jury because the State charged him with committing felony theft for
stealing property in two or more acts as part of a continuing course of conduct. See
K.S.A. 2018 Supp. 21-5801(a)(1) and (b)(5).

Standard of Review

"'When analyzing jury instruction issues, we follow a three-step process:
"(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
considering the merits of the claim to determine whether error occurred below; and (3)
assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless."' [Citation omitted.]" State v. Holley, 313 Kan. 249, 253, 485 P.3d 614 (2021).

At the second step, we consider whether the instruction was legally and factually
appropriate, "using an unlimited standard of review of the entire record." Holley, 313
Kan. at 254. In determining whether an instruction was factually appropriate, we must

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determine whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction. Whether
a party has preserved a jury instruction issue affects our reversibility inquiry at the third
step. See 313 Kan. at 254-55.

When a party fails to object to a jury instruction before the district court, we
review the instruction to determine if it was clearly erroneous. K.S.A. 2020 Supp. 22-
3414(3). For a jury instruction to be clearly erroneous, the instruction must be legally or
factually inappropriate and we must be firmly convinced the jury would have reached a
different verdict if the erroneous instruction had not been given. The party claiming clear
error has the burden to show both error and prejudice. State v. Crosby, 312 Kan. 630,
639, 479 P.3d 167 (2021). If the instructional error impacts a constitutional right, "we
must assess whether the error was harmless under the federal constitutional harmless
error standard, i.e., whether there was 'no reasonable possibility' that the error contributed
to the verdict. [Citations omitted.]" State v. Andrew, 301 Kan. 36, 46-47, 340 P.3d 476
(2014); see Holley, 313 Kan. at 256-57.

Discussion

Contrary to the State's argument, a multiple acts instruction would have been
legally and factually appropriate based on the evidence presented. The State presented
evidence that Smith committed four individual acts of theft from customer accounts
between August 18, 2018, and August 30, 2018, ranging between $200 and $1,000 each.
To constitute felony theft, the jury would have had to find Smith stole "property of the
value of less than $1,500 . . . in two or more acts or transactions connected together or
constituting parts of a common scheme or course of conduct . . . ." K.S.A. 2018 Supp.
21-5801(b)(5). Here, a multiple acts instruction—or, more specifically, a unanimity
instruction regarding the multiple acts—was legally and factually appropriate because as
long as the jury unanimously agreed Smith committed two of the four alleged thefts as

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part of a common scheme or course of conduct, he could be convicted as charged. In
other words, all the jurors needed to at least agree Smith committed the same two acts,
even if there might be disagreement whether he also committed the third and fourth acts.
In fact, the relevant Pattern Instructions Kansas (PIK)—which the jury instruction
followed—reflects this is a multiple acts crime, as PIK Crim. 4th 58.040 (2017 Supp.) is
titled "Theft—Multiple Acts—Common Scheme."

Here, the district court provided following elements instruction for theft to the
jury:

"The defendant is charged in Count 1 with the crime of theft of property. The
defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. a. J.S.N. owned the property;
b. W.V.F. owned the property;
c. L.S.G. owned the property;
d. J.T.B. owned the property;
"2. The defendant exerted unauthorized control over the property;
"3. a. The defendant intended to deprive J.S.N. permanently of the use or benefit
of the property;
b. The defendant intended to deprive W.V.F. permanently of the use or
benefit of the property;
c. The defendant intended to deprive L.S.G. permanently of the use or benefit
of the property;
d. The defendant intended to deprive J.T.B. permanently of the use or benefit
of the property;
"4. The defendant committed two or more of the acts described above.
"5. The acts were connected together or constituted part of a common scheme or
course of conduct.
"6. The value of the property taken in each act was less than $1,500.
"7. That these acts occurred on or between the 21st day of August, 2018, and the
30th day of August, 2018, in Sedgwick County, Kansas."

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 Smith takes issue with paragraph 4 of the jury instruction and expounds at length
as to why a unanimity instruction on multiple acts should have been given. Ultimately,
his argument rests on the idea that such an instruction would have been legally and
factually appropriate. However, we need not answer Smith's challenge because even if we
were to assume that a unanimity instruction was both legally and factually appropriate,
Smith fails to persuade us that the jury would have reached a different verdict if such an
instruction had been given.

The evidence was largely the same with respect to the four victims: None of them
signed the transaction receipts; none of them were present at the time of the transactions;
and Smith was the teller who processed the transactions. Smith complains there was no
video evidence of him "pocketing the money he supposedly stole." But this is true for all
four transactions. The only meaningful discrepancy in the evidence is that one victim did
not testify at trial, whereas the other three victims testified about the thefts from their
accounts. Even so, the evidence was essentially identical as to three of the four victims.
And the State only needed to prove Smith committed at least two thefts. See K.S.A. 2018
Supp. 21-5801(b)(5). It is undisputed the value of the property involved in each of the
alleged thefts was less than $1,500, and Smith points to no evidence suggesting the thefts
were not part of a common scheme or course of conduct.

Smith also makes no clear argument why the jury would not have at least
unanimously agreed he committed the individual thefts from the accounts of Nash and
the other two victims. Instead, he simply points to the fact the jury asked a question about
the instruction. What Smith fails to acknowledge, however, is the district court dealt with
the jury's question by allowing the parties to reopen their closing arguments, giving them
each five minutes to explain to the jury how the facts applied to the law as set forth in the
jury instruction. More importantly, Smith never explains how the district court's actions
were insufficient to remedy the alleged instructional error.

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 In relevant part, the jury submitted a written question to the district court during its
deliberation, asking:

"On Instruction [number] 8 we have a question about the wording of [paragraph
4], does the acts above include [the] statements [in paragraphs] 1, [2 and,] 3, or is it
[paragraphs] 3a, 3b, 3c, [and] 3d? On [paragraph] 5 are we referring to [paragraph 2] or
all acts stated [in paragraph 3]?"

Based on this question, the district court determined, sua sponte, the parties should
be allowed to reopen closing arguments to explain how the instruction applied to the facts
presented at trial. As the State points out in its brief, in its supplemental closing
argument, the State explained to the jury, in relevant part:

"Then you move on to number two, that the defendant exerted unauthorized
control over the property. Whichever the property you unanimously identified, we have to
prove the defendant exerted unauthorized control over that.
"Number three, that is—and that is an act of the defendant that we have to prove,
so that's one.
"And then there is another act with respect to [paragraph] 3; 3a, 3b, and 3c and
3d. Those are four choices. You must unanimously find two—at least two. You can find
all four. You can find three, but you must at least find two. If you don't find two, then you
don't have a verdict or at least you don't have a verdict of guilty.
"With respect to [paragraph] 4, that's just referring you back to two or more at
question three. Okay. But you still must find that.
"Let's say for example, you find 3a, that the defendant intended to deprive JSN
permanently of the use or benefit of the property. If you find that unanimously, you must
still have found that JSN owned that property. Does that make sense? It must correspond.
"In other words, if you find unanimously 3a you must have found unanimously
1a, and 2, that the defendant exerted control over it.
"You must also find unanimously that the facts were—I'm on number five now—
that the acts constituted a common scheme, course of conduct." (Emphases added.)

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 Smith's counsel also explained to the jury, in relevant part:

"[Paragraph] 4 explains that Mr. Smith—you must find—if you determine
beyond reasonable doubt—you must find that Mr. Smith committed two or more of the
acts described above.
"So you would need to describe two or more or find as to two or more of those.
These have to be unanimous. That means all of you have to decide. Let's take for
instance, or example, JSN, as to A. All of you would have to find as to A, and all of you
would have to find as to one of the other examples. It couldn't be a split finding of two.
And then that the acts were connected together or constituted a common scheme or
course of conduct. That refers you back to the two if you were able to find two. And then,
of course, the value which has already been explained and each of those would have to be
a unanimous finding as well.
"So in each step, it has to be a unanimous finding. And the burden should be
applied to each element of each step within the instruction." (Emphases added.)

The parties' supplemental closing arguments properly explained to the jury its
verdict had to be unanimous on which two acts of theft it believed occurred. Smith fails
to explain how the above-cited supplemental explanations were insufficient to resolve
any questions the jury had about the instruction.

The parties agree any error in the failure to give a unanimity instruction potentially
affected Smith's constitutional right to a unanimous jury verdict as recognized in Ramos
v. Louisiana, 590 U.S. ___, 140 S. Ct. 1390, 1396-97, 206 L. Ed. 2d 583 (2020). But
even under the constitutional harmless error standard, the State easily meets its burden
here to prove "beyond a reasonable doubt that the error complained of will not or did not
affect the outcome of the trial in light of the entire record, i.e., where there is no
reasonable possibility that the error contributed to the verdict." State v. Ward, 292 Kan.
541, Syl. ¶ 6, 256 P.3d 801 (2011).

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III. ANY ERROR IN THE AMOUNT OF RESTITUTION ORDERED WAS INVITED BY SMITH.

Finally, Smith argues the district court erred in ordering him to pay $4,100 in
restitution when the evidence at trial only established he stole $3,200 from the affected
customers.

Standard of Review

When a defendant challenges the propriety of the amount of restitution ordered,
we review the district court's decision for an abuse of discretion. State v. Holt, 305 Kan.
839, 842, 390 P.3d 1 (2017). "A judicial action constitutes an abuse of discretion if (1) it
is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based
on an error of fact. [Citation omitted.]" State v. Levy, 313 Kan. 232, 237, 485 P.3d 605
(2021).

Discussion

"The appropriate [restitution] amount is that which compensates the victim for the
actual damage or loss caused by the defendant's crime. And the most accurate measure of
this loss depends on the evidence before the district court." State v. Hall, 297 Kan. 709,
713-14, 304 P.3d 677 (2013). As long as the evidence properly establishes the "requisite
causal connection" between the defendant's acts and the victim's losses, the district court's
restitution award will be upheld. 297 Kan. at 714. "Generally, '"[a] district court's factual
findings relating to the causal link between the crime committed and the victim's loss"'
are reviewed for substantial competent evidence. [Citations omitted.]" State v. Arnett, 307
Kan. 648, 653, 413 P.3d 787 (2018). Substantial competent evidence refers to legal and
relevant evidence that a reasonable person could accept as being adequate to support a
conclusion. State v. Smith, 312 Kan. 876, 887, 482 P.3d 586 (2021).

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 The State argues we should decline to review the issue because, at sentencing,
Smith failed to object to the restitution order and thus acquiesced to the order and/or
invited the error.

Smith acknowledges he failed to object below but asserts this issue can be
reviewed for the first time on appeal because restitution is a component of his sentence,
and an illegal sentence claim may be raised at any time. See State v. Dickey, 301 Kan.
1018, 1027, 350 P.3d 1054 (2015) (claim of illegal sentence may be raised for first time
on appeal); State v. Hall, 298 Kan. 978, 986, 319 P.3d 506 (2014) (restitution is part of
defendant's sentence). Smith further argues the issue may be considered for the first time
on appeal because (1) the claim arises on proven or admitted facts, which are
determinative of the case, and (2) consideration of his claim is necessary to serve the
interests of justice or prevent the denial of his fundamental rights. See State v. Godfrey,
301 Kan. 1041, 1043, 350 P.3d 1068 (2015) (noting exceptions to preservation
requirement for issues not raised below).

Even if we assume the issue may be properly considered for the first time on
appeal, we agree with the State that Smith invited any error concerning the amount of
restitution.

It is well established that a party "may not invite an error and then complain of the
error on appeal." State v. Stoll, 312 Kan. 726, 735, 480 P.3d 158 (2021). Moreover, other
panels of our court have held that a defendant acquiesces and invites the error when the
defendant argues the district court's restitution amount was based on the prosecutor's
statement alone if the defendant requested no evidentiary hearing or expressly declined to
object to the restitution amount. See State v. Alexander, No. 116,618, 2017 WL 3203392,
at *1 (Kan. App. 2017) (unpublished opinion) ("'We would not object to the $2,800.00'");
State v. Jones, No. 109,442, 2014 WL 1612459, at *1-2 (Kan. App. 2014) (unpublished
opinion) ("We have no objection to that []400-dollar amount.'").

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 At sentencing, Smith's counsel responded to the State's request for $4,100 in
restitution, stating: "I don't have an objection to that restitution amount given that we had
the trial and the evidence [has] already been heard." Thus, the record is clear that Smith
acquiesced to the restitution amount by expressly not objecting to the State's restitution
amount and by failing to ask for an evidentiary hearing. To the extent that the district
court's restitution amount is unsupported by the evidence in the record, Smith invited any
such error and cannot complain now about such amount on appeal.

Affirmed.

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