BY THE COURT
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.
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
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.
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,
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.
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.
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.
and Procedural Background
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
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
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.
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
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.
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)"
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.
testimony of Sweeney and Rhodes did not support Ward's
version of events.
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
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.
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.
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.
State did not call a representative from Bank of America to
testify, but check Number 1073 was introduced into evidence.
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