The opinion of the court was delivered by
Richard M. Rios and William S. Johnson appeal their jury trial
convictions of one count each of jointly making a false writing
(K.S.A. 21-3711); one count each of individually making a false
writing (K.S.A. 21-3711); and one count each of theft by
deception (K.S.A. 21-3701[b]). The State has filed a cross-appeal
challenging the jury instruction permitting the jury to merge
multiple counts into single counts under the single larceny
The relevant facts are quite complex.
William S. Johnson was the store manager of Dillard's Towne
West Department Store (Towne West) in Wichita, Kansas, from March
1986 until his resignation on June 3, 1987. Richard Rios was the
store manager of Dillard's Towne East Department Store (Towne
East) in Wichita from sometime in 1984 until August 17, 1987.
Johnson went to Towne East quite often between January and June
of 1987. Johnson and Rios were business associates and friends.
On May 22, 1987, Kay Griffen, the Towne West Credit Manager and
head of the cash room, saw Johnson enter the store's training
room carrying a cash register ribbon. The training room is used
solely for training store personnel to operate cash registers. He
asked her if there were more ribbons in the stockroom. After
fifteen or twenty minutes, Johnson emerged from the training room
and told Ms. Griffen he would change the cash register ribbon,
something Ms. Griffen knew the store manager would not do.
Johnson thereafter moved the training cash register from the
training room to a location behind his office.
When the Towne West's personnel director, Joyce Cooper,
returned from vacation on May 27, 1987, Ms. Griffen told her
about the incident concerning Johnson and the cash register
ribbon and said she would look for the ribbon. The following day,
May 28, 1987, Cooper and Griffen went into Johnson's office
during his absence and searched for "what we thought we were
looking for, the ribbon." In Johnson's briefcase they found a
stack of thirty-six refund vouchers that had been rung up on a
cash register but did not have the customer portion of the
voucher filled out. The customer portion of the refund voucher
contains the customer's name, address, store where the item was
purchased, why it was returned, the salesperson who sold it, and
the customer's signature. A "rung up" voucher contains the store
department number, the salesperson's number, the amount of tax,
and the total amount of money refunded. Ms. Cooper copied down
the vouchers' serial numbers and the money amount which had been
rung up on each voucher. The cash register ribbon was
subsequently found by the investigating duo on top of the
credenza in Johnson's office.
The next day, May 29, 1987, Cooper compared the refund vouchers
from the cash room with the list of vouchers in Johnson's
briefcase and discovered that one voucher for $147 had been
cashed at 5:20 p.m. that day. The cash room is the location where
all store cash, checks, and vouchers are processed. The cash room
is always locked. All store money is kept inside the safe in the
cash room. The lower part of the safe, containing a minimal
amount of cash, is left open during the day. The store manager
(Johnson), the operations manager (Griffen), and two area sales
managers have free access to the cash room and safe.
Refund vouchers come to Towne West from Dillard's corporate
headquarters in Little Rock, Arkansas, and are numbered
sequentially. Refund vouchers are kept in the cash room and
checked out in a series with a record made of who is checking
them out. Dillard's uses refund vouchers to make a record of
refunds that are given to customers who return merchandise.
On June 1, 1987, Cooper found that more of the refund vouchers
found in Johnson's briefcase had been cashed on May 30, 1987. She
notified Bob Appleby, a Dillard's official at the corporate
headquarters, of the suspicious facts she had uncovered.
On June 3, 1987, Appleby, along with other Dillard's corporate
officials, went to Wichita to investigate the list of refund
vouchers provided by Cooper and Griffen. They met with Johnson,
Cooper, and Griffen. Johnson confessed to cashing the refund
vouchers. He stated he did it "for the obvious reason, I needed
Richard Willey, one of the Dillard's corporate officials
present, testified Johnson explained that he had taken customer
names and addresses and had rung up fraudulent vouchers on the
training register. Johnson stated that he would then place a
voucher in the safe and remove money in the amount of the
voucher. It was estimated about $3,000 had been taken on the
prior weekend. Johnson admitted to the taking and he indicated he
would repay that amount.
Johnson resigned that same day, June 3, 1987. Following his
resignation, Griffen found packages of refund vouchers in
Johnson's office file cabinet, and found a full box of refund
vouchers in a storeroom adjacent to Johnson's office.
On June 4, 1987, Johnson spoke with Kevin Fisher, Dillard's
corporate internal auditor. Fisher, who had come to Wichita from
Little Rock to investigate the alleged misuse of refund vouchers
at Towne West, was responsible for evaluating the company's
accounting systems and controls for their adequacy in protecting
the company's assets.
Johnson described to Fisher the procedures he used to ring up
refund vouchers on the training register at Towne West. He used
tape to prevent the register from printing numbers on the
vouchers which would indicate what register had been used and
what store had processed the refund.
After Fisher returned to Little Rock, he conducted a review of
refund vouchers cashed at the two Wichita Dillard's stores
between January 1, 1987, and June 4, 1987, seeking evidence of
Johnson's procedures with the refund vouchers. He found that
numerous refund vouchers without store identification data had
been cashed at both Towne West and Towne East. Further corporate
investigations revealed that the refund vouchers had come from
Towne West, when Johnson was manager, and Towne East, when
Richard M. Rios was manager. Fisher subsequently returned to
Wichita and turned the refund vouchers over to the Wichita Police
Department. Fisher also provided Detective Tom
Burnett with records containing handwriting of both Johnson and
Following a police investigation, Johnson and Rios were
charged, on December 9, 1987, in a 111-count information. Johnson
was charged with 59 counts of making a false writing (K.S.A.
21-3711) and four counts of theft by deception (K.S.A.
21-3701[b]). Rios was charged with 47 counts of making a false
writing and 19 counts of theft by deception. The offenses were
alleged to have been committed between January 17, 1987, and May
The State had in its possession between six and seven hundred
of these bogus refund vouchers. The State elected to proceed on
only 88 of the vouchers on false writing charges. Both defendants
were charged jointly on some vouchers, which accounts for the
discrepancy between the number of vouchers and false writing
counts. The State subsequently filed a motion to admit all the
uncharged vouchers to show plan, intent, lack of mistake, etc.
Also, said evidence would buttress its case as to the handwriting
identification. The motion was denied. At the same hearing, the
defendants' motions for severance of their trials was denied.
In addition to his testimony concerning Johnson's description
of his methodology in ringing up refund vouchers, Kevin Fisher
testified to the standard procedures for handling refund
transactions. He testified that when a refund is rung up the
register number, store number, transaction number, clerk number,
dollar amount, and merchandise number are printed on a refund
voucher and transferred to the Little Rock central processing
area. If a customer wants a cash refund, he or she must take the
refund voucher to the store credit office and get cash from a
clerk. A refund slip is then placed in the register, and the
register is still in balance for accounting purposes. Ringing up
refunds on training registers did not have an impact on physical
inventory or the financial reporting system of Dillard's. Fisher
did not know whether the bogus refund vouchers were exchanged for
cash or merchandise; however, he knew that either cash or
merchandise had to ...