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May 25, 1990.

STATE OF KANSAS, Appellee/Cross-Appellant,
RICHARD M. RIOS, Appellant/Cross-Appellee. STATE OF KANSAS, Appellee/Cross-Appellant, v. WILLIAM S. JOHNSON, Appellant/Cross-Appellee.

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 doctrine.

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.

[246 Kan. 519]


  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.

[246 Kan. 520]


  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 the money."

  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

[246 Kan. 521]

      Burnett with records containing handwriting of both Johnson and Rios.

  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 30, 1987.

  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 ...

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