Appeal from Ellis District Court; EDWARD E. BOUKER, judge.
SYLLABUS BY THE COURT 1. An appellate court has unlimited review of whether a criminal case has been brought in the correct venue. When resolving a claim of improper venue requires statutory interpretation, that statutory interpretation is an issue of law which is subject to de novo review on appeal. 2. Under the Kansas Constitution, a criminal defendant is entitled to be tried in the county or district in which the offense is alleged to have been committed. Kan. Const. Bill of Rights, § 10. When two or more acts are required for the commission of a crime and the acts occur in different counties, the State may prosecute the defendant in any county in which any such acts occurred. K.S.A. 22-2603. 3. The criminal use of a financial card in violation of K.S.A. 2012 Supp. 21-5828(a)(1) involves the use of a financial card without the consent of the cardholder. Here, the cardholder, whose consent the defendant did not obtain before using the card, resided in a county where the defendant had never visited. Under the facts of this case, the State was not entitled to prosecute the defendant in the county where the cardholder resided. 4. It is not the role of the courts to create special venue provisions based upon public policy considerations that are within the province of the legislature.
The opinion of the court was delivered by: Mcanany, J.
Before MCANANY, P.J., BUSER and STANDRIDGE, JJ.
The State charged Samantha Coty in Ellis County with credit card fraud. The credit card Coty allegedly used was physically located in Ellis County where the cardholder, Kenneth Jacobs, lived and worked. Coty was in Sedgwick County when she allegedly made unlawful charges using information from Jacobs' credit card. There was no evidence that Coty had ever been in Ellis County. The district court dismissed the charge, finding that Ellis County was not the proper venue for prosecution because no elements of the crime occurred there. The State appeals.
The Visa credit card was issued by UMB Bank to Jacobs in his capacity as plant director of Fort Hays State University in Ellis County. Jacobs was entitled to use the card for purchases related to his work at the university. He kept the card in a locked file cabinet in his office. He had not been to Wichita during the year and a half before the events surrounding this case and had not authorized anyone else to use the card during the relevant time period.
When UMB Bank inquired of Jacobs about certain purchases made with the card, it became apparent that information from the card was being used without Jacobs' consent to make purchases. One of the unauthorized charges was for the purchase of airline tickets. The tickets were purchased in Wichita through the Expedia on-line travel service and were for a flight from Wichita Mid-Continent Airport to Alexandria Air Force Base in Louisiana. The tickets were to be picked up at the airport on the day of the flight. Sedgwick County law enforcement authorities intercepted Coty at the airport when she arrived for the flight and claimed the tickets. Coty was arrested and eventually transported to Ellis County where she was charged with criminal use of a financial card in violation of K.S.A. 2012 Supp. 21-5828(a)(1). The complaint stated:
"That on or about the 13th day of September, 2011, in Sedgwick County, Kansas, Samantha Thompson Coty, then and there being present did unlawfully, feloniously, and knowingly use a number issued by Visa Credit Card, last four digits 0218, issued by UMB Bank Card Center to the cardholder Fort Hays State University, person authorized to use said card, Ken Jacobs, in Ellis County, KS, without the consent of cardholder Ken Jacobs, with the intent to defraud and to obtain, money, goods, property or services, and did obtain flight tickets on Continental Airline totaling $1,622.00 in violation of the 2010 Kansas Sessions Laws Chap 136 Sec. 114(a)(1), to be codified at K.S.A. 2011 Supp 21-5828(a)(1), formally codified at K.S.A. 21-3729, Criminal Use of a Financial Card, a severity level 9 nonperson felony."
Coty moved to dismiss the charge on the grounds that the crime as alleged was committed in Sedgwick County and Ellis County was not the proper venue for the case pursuant to K.S.A. 22-2602. The district court dismissed the charge for lack of venue. In doing so, the court rejected the State's argument that failing to obtain the cardholder's consent was an act that occurred in Ellis County. The court found no evidence that "the defendant was in Ellis County at any time" and dismissed the charge because no elements of the crime took place in Ellis County. The court stated: "If the defendant charged using the financial card numbers without the consent of Kenneth Jacobs, the lack of consent occurred in Sedgwick County, and not in Ellis County."
We have unlimited review of the venue issue in this appeal. See State v. McElroy, 281 Kan. 256, 264, 130 P.3d 100 (2006). When resolving a claim of improper venue requires statutory interpretation, "such interpretation also raises issues of law subject to de novo review on appeal. [Citation omitted.]" 281 Kan. at 264-65.
Under our Kansas Constitution, Coty is entitled to be tried in "the county or district in which the offense is alleged to have been committed." Kan. Const. Bill of Rights, § 10; see K.S.A. 22-2602. In situations in which two or more acts are required for the commission of a crime and the acts occur in different counties, the State can prosecute the defendant in any county in which any such acts occurred. See K.S.A. 22-2603.
Coty was charged with criminal use of a financial card in violation of K.S.A. 2012 Supp. 21-5828(a)(1). That statute provides:
"(a) Criminal use of a financial card is any of the following acts done with intent to defraud and to obtain ...