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State v. Justice-Puett

Court of Appeals of Kansas

September 13, 2019

State of Kansas, Appellee,
v.
Danielle Dawn Justice-Puett, Appellant.

         SYLLABUS BY THE COURT

         1. The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings.

         2. When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible.

         3. When the words of K.S.A. 2018 Supp. 21-5805(c) are given their ordinary meaning, and the language is read in context with the other subsections of the statute, it is clear that the terms "tool" and "device" are both modified by the descriptive phrase "designed to allow the removal of any theft detection device." Thus, the phrase "designed to allow the removal of any theft detection device" requires an intentional design particular to, and designed for the purpose of, the removal of any theft detection device.

         4. Viewing all the evidence in a light most favorable to the State, no rational fact-finder could have found defendant guilty of possessing a tool or device designed to allow the removal of any theft detection device. Without evidence of what tool defendant may have used, it could not meet its burden of proof regarding the intentional design element. Defendant's motion for judgment of acquittal should have been granted.

          Appeal from Riley District Court; Meryl D. Wilson, judge.

          Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

          Bethany C Fields, deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Hill, P.J., Standridge, J., and Neil B. Foth, District Judge, assigned.

          FOTH, J.

         Danielle Dawn Justice-Puett appeals her conviction for possession of a theft detection device remover, claiming she did not violate the terms of the statute. K.S.A. 2018 Supp. 21-5805(c) reads:

"Unlawful acts involving theft detection shielding devices. It shall be unlawful to:
. . . .
"(c) possess any tool or device designed to allow the removal of any theft detection device from any merchandise with the intent to use such tool to remove any theft detection device from any merchandise without the permission of the merchant or person owning or holding such merchandise."

         Justice-Puett argues that the statute only prohibits possession of either a tool or device specifically designed to remove or defeat theft detection devices on merchandise. Since the State had no specific evidence of what Justice-Puett used to cut a security detection device from two cell phone screen protectors, she argues that the State could not possibly have met its burden of proving that she possessed such an intentionally designed tool or device. She appeals the district court's denial of her motion for judgment of acquittal, as well as the jury's verdict, based on insufficiency of the evidence. Justice-Puett was also convicted of misdemeanor theft but does not appeal that verdict.

         The State makes simultaneous or alternative arguments. The State's primary argument at trial and on appeal is that the statute prohibits possessing any kind of tool or device capable of removing a theft detection device; that if it is capable, it was "designed to allow" that removal. For example, if a theft detection device may be removed from merchandise by cutting it away, then a ...


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