State v. Livengood

NOT DESIGNATED FOR PUBLICATION

No. 122,241

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MARK T. LIVENGOOD,
Appellant.

MEMORANDUM OPINION

Appeal from Douglas District Court; JAMES T. GEORGE, judge pro tem. Opinion filed June 11,
2021. Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., ATCHESON and SCHROEDER, JJ.

PER CURIAM: The critical issue in the prosecution of Defendant Mark Livengood
for possession of stolen property—specifically a Shiatzu-Poodle named Hudson—was
who owned the dog. After hearing evidence in a two-day trial, a jury sitting in Douglas
County District Court convicted Livengood and in doing so necessarily concluded
Hudson belonged to Megan Dechant, his former girlfriend, rather than to him. On appeal,
Livengood has challenged the sufficiency of the evidence. The verdict was adequately
supported by the trial evidence. We, therefore, affirm Livengood's conviction and
sentence.

1
 In reviewing a sufficiency challenge, we construe the evidence in a light most
favorable to the party prevailing in the district court, here the State, and in support of the
jury's verdict. An appellate court will neither reweigh the evidence generally nor make
credibility determinations specifically. State v. Jenkins, 308 Kan. 545, Syl. ¶ 1, 422 P.3d
72 (2018); State v. Butler, 307 Kan. 831, 844-45, 416 P.3d 116 (2018); State v. Pham,
281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for review is simply whether
rational jurors could have found the defendant guilty beyond a reasonable doubt. Butler,
307 Kan. at 844-45; State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014). Given
the issue and the standard of review, we dispense with a full cataloging of the trial
evidence in favor of a focused narrative illuminating the ownership issue.

For about six years, Livengood and Dechant had a close dating relationship. But
they maintained separate homes and did not comingle their finances. In January 2015, the
two were in a pet store when Livengood spontaneously suggested he buy a Shiatzu-
Poodle. Dechant agreed. She already had two dogs as pets. The trial evidence showed
Livengood purchased Hudson, but Hudson always resided with Dechant. On occasion,
Dechant would bring Hudson with her when she visited Livengood's home. The trial
evidence indicated Livengood and Dechant shared at least some of the expenses
associated with Hudson's care.

Livengood and Dechant ended their relationship on Christmas Day 2016, and the
evidence hints the breakup was less than cordial. Hudson remained with Dechant.

In April 2018, Dechant let Hudson and the other two dogs out in her fenced yard
as she got ready for work. Someone jumped the fence, grabbed Hudson, and took off.
Dechant called the police to report the theft of Hudson. Various law enforcement
agencies wound up investigating the dognapping and interviewing people who might
have relevant information. Based on a review of her home security video, Dechant told
investigators she did not think Livengood physically took Hudson; she suggested a

2
younger, more agile relative of his may have. In short order, other law enforcement
officers talked to Livengood at his house. He told them he didn't know anything about the
dog's disappearance and didn't want the dog. According to the officers, Livengood never
affirmatively asserted some ownership interest in Hudson. The officers looked around the
house and saw a large dog who didn't fit Hudson's description.

About a month later, the officers returned to Livengood's house. Livengood then
had a dog that looked very much like Hudson but wore a collar with a tag for "Dallas."
The officers took custody of the dog, and further investigation showed the dog to be
Hudson, based on an identification microchip. Livengood told the officers the dog had
been at his mother's house. The circumstances of how Hudson came to be at Livengood's
house may be fairly characterized as murky. About 10 days after taking Hudson and
confirming his identity, the officers returned to interview Livengood. According to the
officers, he declined to say how he got Hudson because he might get somebody else in
trouble. Livengood, however, then asserted he had an ownership interest in the dog.

The Douglas County District Attorney's Office ultimately charged Livengood with
theft of property (Hudson) knowing the property to have been stolen by someone else, a
violation of K.S.A. 2017 Supp. 21-5801(a)(4) and, in the alternative, with temporarily
obtaining or exerting control of property without the owner's authorization, a violation of
K.S.A. 2017 Supp. 21-5803(a). Both charged crimes were misdemeanors.

The jury heard the case in August 2019. Livengood testified in his own defense
and, pertinent here, told the jurors he bought Hudson, never made a gift of Hudson to
Dechant, and considered himself to be Hudson's owner. Dechant testified to her
continuous possession of Hudson but never expressly characterized the dog as a gift from
Livengood. The jury convicted Livengood of both charges, and the district court
dismissed the conviction for temporary deprivation. That procedural aspect of the
prosecution does not figure in this appeal. About a month later, the district court

3
sentenced Livengood on the misdemeanor theft conviction. Livengood has timely
appealed.

Consistent with K.S.A. 2017 Supp. 21-5801(a)(4) and the elements of theft, the
district court instructed the jurors they had to be convinced beyond a reasonable doubt
that Dechant "was the owner of the property"; that Livengood "obtained control over the
property knowing it to have been stolen by another" between April 23 and May 31, 2018;
and that he intended to permanently deprive Dechant of the property.

Livengood doesn't directly dispute the evidence bearing on the latter two elements.
His statements, recounted during the trial by the investigating officers, that he refused to
tell them how he got Hudson in 2018 because it might create trouble for another person
and his identification of Hudson as "Dallas" suggest he knew the dog had been taken
without permission from Dechant and he didn't intend to return the dog. That's sufficient
evidence to support those aspects of the charge.

Rather, as we have said, Livengood contends the State presented insufficient
evidence that Dechant owned Hudson in the spring of 2018. As a general proposition,
continuous and undisputed possession of personal property may be indicative of
ownership. See Alexander v. Logan, 65 Kan. 505, 510, 70 P. 339 (1902) ("The possession
of personal property is some evidence of ownership."); Willcox v. Stroup, 467 F.3d 409,
412-13 (4th Cir. 2006); 29 Am. Jur. 2d, Evidence § 284. Although that alone might be a
slender reed upon which to rest a criminal conviction, there is substantially more here.

After Livengood and Dechant went their separate ways, Dechant retained
possession of Hudson apparently without any objection from Livengood. That, too,
buttresses Dechant being Hudson's owner, especially after Christmas 2016. Even
assuming Livengood initially had some ownership interest in Hudson because he paid for
the dog, ownership of personal property may be lost through abandonment. See

4
Schoenholz v. Hinzman, 295 Kan. 786, 793, 289 P.3d 1155 (2012). Abandonment of
personal property is a matter of intent and presents a question of fact. 295 Kan. at 792-93.
Intent, as a state of mind, often evades direct proof but may be established through
circumstantial evidence. See State v. Thach, 305 Kan. 72, 82, 378 P.3d 522 (2016).

Here, Livengood's apparent failure to assert any ownership interest in or claim to
Hudson between December 2016 and mid-2018 constitutes circumstantial evidence he
abandoned whatever interest or claim he might have had. Moreover, one of the
investigating law enforcement officers testified that Livengood explicitly disclaimed any
ownership of Hudson in 2018. Although Livengood later asserted otherwise during the
investigation and at trial, the jurors properly served as the arbiters of credibility to
evaluate all of the evidence and to resolve precisely that kind of conflict. Our function as
an appellate court does not extend to second-guessing those determinations. See State v.
Franco, 49 Kan. App. 2d 924, 936-37, 319 P.3d 551 (2014).

Giving due play to the jurors' prerogatives as the finders of fact, we cannot say the
guilty verdict and the requisite determination that Dechant owned Hudson in 2018 lacked
sufficient evidence. We, therefore, affirm Livengood's conviction and the resulting
sentence.

Affirmed.

5