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State v. Ward

Supreme Court of Kansas

January 12, 2018

State of Kansas, Appellee,
v.
Christopher R. Ward, Appellant.

         SYLLABUS BY THE COURT

         1. On the facts of this case, there was insufficient evidence to support the defendant's conviction of theft by deception; both the charging document and the instruction to the jury named two possible victims, and there was no proof that either was deceived by defendant.

         2. A defendant's conviction for making false information can be affirmed regardless of whether the criminal conduct pertains to his or her own business or affairs. Any earlier statement in or impression from State v. Rios, 246 Kan. 517, 792 P.2d 1065 (1990), and State v. Gotti, 273 Kan. 459, 463, 43 P.3d 812 (2002), to the contrary is explicitly rejected.

         3. On the facts of this case, evidence that the defendant altered the payee line of a check was insufficient to prove the defendant made false information.

         Review of the judgment of the Court of Appeals in 52 Kan.App.2d 663, 372 P.3d 417 (2016).

Appeal from Johnson District Court; James Franklin Davis, judge.

          Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and Allie J. Prester, legal intern, was with him on the brief for appellant.

          Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

          OPINION

          Beier, J.

         In this appeal the State challenges a Court of Appeals panel's reversal of defendant Christopher Richard Ward's convictions for theft by deception and making false information. See State v. Ward, 52 Kan.App.2d 663, 372 P.3d 417 (2016). We agree with the panel that the evidence to support the convictions was insufficient and affirm its decision; our reasoning differs slightly from that of our colleagues on the Court of Appeals. Defendant is entitled to reversal of both of his convictions.

         Factual and Procedural Background

         Ward and his friend Andrew Rhodes formed and operated a construction business, All Construction Guaranteed Roofing and Restoration (ACG). Their financial arrangement was a loose one. They merely orally agreed to become general contractors who would supply materials and hire subcontractors to perform work on projects. Neither had a set salary; occasionally they would estimate profits and divide them evenly.

         A 2011 hailstorm in Johnson County provided plentiful work for ACG, but the next year brought fewer opportunities. ACG struggled before winning a bid for a large painting project at a townhome complex, which promised a healthy profit. Still, ACG's cash flow was insufficient, and Ward told Rhodes that he would approach Orin Sweeney about a loan to the company.

         Sweeney, who owned two construction businesses, would eventually testify in Ward's trial that he met with Ward and gave him a $20, 000 check, Number 1073, which was made payable to "ACG Restoration." The check was drawn on Sweeney's business checking account with Bank of America. Although Ward had asked Sweeney to add Ward's name as a payee on the check, Sweeney refused.

         Undeterred, Ward added "or Chris Ward" on the payee line of the check after leaving the meeting with Sweeney. Later the same day he deposited the check into his personal account at First National Bank.

         Rhodes did not learn of the check until weeks later, when Sweeney, unsuccessful in contacting Ward, turned to Rhodes to obtain repayment of the loan. When Sweeney discovered that Ward had added his name as an alternative payee of the check, he reported Ward's actions to law enforcement.

         As a result, the State charged Ward with two counts:

"COUNT I: That on or about the 22nd day of May, 2012, . . . CHRISTOPHER RICHARD WARD did . . . obtain control over property or services by deception, to-wit: cash, with the intention to permanently deprive the owner, to-wit: ACG Restoration or Bank of America of the possession, use or benefit of the property, . . . in violation of K.S.A. 21-5801, K.S.A. 21-6804 and K.S.A. 21-6807. (theft)
"COUNT II: Further, that on or about the 22nd day of May, 2012, . . . CHRISTOPHER RICHARD WARD did . . . with intent to defraud make a written instrument to-wit: check #1073, with knowledge that such information falsely states some material matter or is not what it purports to be, . . . in violation of K.S.A. 21-5824, K.S.A. 21-6804, and K.S.A. 21-6807. (making []false information)"

         During opening statements at trial, Ward's counsel introduced the defense theory that Ward had sold the entire apartment complex project to Sweeney and that the $20, 000 was to be Ward's share of profit from the sale. In short, according to Ward, he had not done anything more than claim his ultimate due early in the transaction.

         The testimony of Sweeney and Rhodes did not support Ward's version of events.

         Sweeney testified that Ward arrived for their meeting with a preliminary handwritten loan agreement. The agreement included a signature purporting to be that of Rhodes. Sweeney refused to sign the agreement but, after some negotiation, assented to making the $20, 000 loan to ACG. According to Sweeney, ACG would keep the next two payments from the project on the complex; then all future payments would go to Sweeney's company. Sweeney's company would also receive $15, 000 of the realized profit once ACG completed the project, leaving any remaining profit for ACG. Sweeney was clear-he intended only to provide temporary financial backing. Bank of America reimbursed Sweeney $20, 000 when it was alerted to Ward's alteration of the payee line on the check.

         Rhodes testified that Ward insisted on meeting with Sweeney alone, because Rhodes and Sweeney had not previously been acquainted. Rhodes' understanding of the agreement between Sweeney and ACG was substantially similar to that of Sweeney. Rhodes testified that shortly after Ward's meeting with Sweeney, Ward told him Sweeney had agreed to help ACG for $15, 000 of the profit from the project, but ACG would finish the project. Ward said nothing about Sweeney's $20, 000 check. Rhodes denied signing the preliminary handwritten loan agreement Ward had presented to Sweeney. He also testified that Ward left town sometime after meeting with Sweeney.

         A representative from First National Bank testified that Ward would not have been permitted to deposit Sweeney's check into his personal account but for the presence of "or Chris Ward" on the payee line. The representative also said Ward had called the bank the day he deposited the check to try to get immediate access to the cash, which was refused. First National Bank eventually reimbursed Bank of America for the amount Bank of America reimbursed Sweeney.

         The State also introduced Ward's personal bank statements into evidence; they revealed that, in the days before his meeting with Sweeney, Ward withdrew substantial sums of money through ATMs at local casinos. Moreover, his personal account was overdrawn in the days before he met with Sweeney. As soon as Sweeney's check cleared, Ward again made numerous withdrawals through ATMs at local casinos.

         The State did not call a representative from Bank of America to testify, but check Number 1073 was introduced into evidence.

         In addition to testifying to his understanding of the deal, as outlined in his counsel's opening statement, Ward acknowledged before the jury that Sweeney had declined his request to add his name to the payee line of the check. Ward ...


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