State v. Simonsson ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,917
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
BRENT SIMONSSON,
Appellant.
MEMORANDUM OPINION
Appeal from Decatur District Court; PRESTON PRATT, judge. Opinion filed February 19, 2021.
Affirmed.
Donald E. Anderson II, of Law Office of Donald E. Anderson II, LLC, of Great Bend, for
appellant.
Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., BRUNS and POWELL, JJ.
PER CURIAM: Brent Simonsson appeals the jury's guilty verdict for misdemeanor
theft, arguing insufficient evidence supports his conviction because the evidence did not
show he intended to exercise unauthorized control over the property or permanently
deprive the owner of the property. After reviewing the evidence in the light most
favorable to the State, we disagree and affirm Simonsson's conviction.
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FACTUAL AND PROCEDURAL BACKGROUND
In late June 2018, James Long noticed some property was missing from his yard
and reported the missing property to the police. Officer Dalton Downing of the Oberlin
Police Department responded to the report. James informed Downing some restaurant
booths and chairs were missing from his front yard.
On July 11, 2018, several days after taking the report, Downing responded to a
message to contact the victims. James' wife, Laurie Long, informed Downing she had
spotted some of the stolen items on a dirt lot in Oberlin. Downing drove by the lot and
saw two restaurant booths.
Downing contacted the lot's owner, Chris May, who told him that on July 1st or
2nd, Simonsson came to his shop and asked another man, Gary Alstrom, to help him
move some furniture. According to May, Simonsson and Alstrom left and returned later
with three wooden chairs and two booths. Simonsson asked May if he wanted to borrow
the furniture for a while before Simonsson took them to his brother's pond. May told
Simonsson he would take the chairs for his customers but did not want the booths.
Simonsson left the chairs but returned later and left the booths in the corner of May's lot.
Alstrom confirmed he went with Simonsson to pick up the furniture. Alstrom and
Simonsson arrived at the house with the booths and chairs, picked them up out of the
yard, loaded them, and took them away.
Later on the same day Downing had interviewed May and Alstrom, Simonsson
contacted Decatur County Dispatch, twice asking for an officer to call him back.
Downing returned Simonsson's call, and Simonsson told Downing he saw the booths and
chairs sitting on the curb and believed they were free to take, so he did.
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The State charged Simonsson with misdemeanor theft. A jury trial was held on
April 4, 2019. James testified the restaurant booths were sitting on his front lawn,
approximately 6 to 8 feet from his house, closer to his house than to the curb. James' front
lawn had two dead spots where the booths had been sitting. James testified that none of
the booths or the chairs were sitting near the curb or edge of the street and none had any
signs saying the items were free to take. James did not give anyone permission to take the
booths or chairs. James said the booths had been outside for a day-and-a-half or two days
but later said they had been there for a week total over two periods of time.
Laurie testified she first realized the booths were missing on June 29, 2018. Laurie
said the booths had left dead spots on the front lawn because they had been there for
around 2 weeks but later testified the items had been in the front yard for 20 days. Laurie
explained the chairs were against the back of the storage shed on their property near the
end of the driveway farthest from the street when they were taken. After reporting the
theft, Laurie noticed the booths when driving around town and informed the police.
Alstrom testified he could not remember the exact day he helped Simonsson, but it
was before July 4. Alstrom identified the booths and chairs as the furniture he helped
Simonsson load into his vehicle. Alstrom testified they took the chairs from right beside
the house and the booths from in front of the house; none were by the curb. Alstrom did
not know whether Simonsson had permission from the owners to take the items but
assumed he did. Alstrom did not see any signs saying the furniture was free to take.
May testified Simonsson brought the furniture to his property and asked him if he
wanted to borrow the booths for the Fourth of July and borrow the chairs for a while
before Simonsson took the booths and chairs to his brother's pond.
Downing testified about his report and largely recounted the above narration. He
saw the dead spots in the grass where the booths had been sitting in the middle of James'
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yard and testified Simonsson told him he thought the items were on the curb and free to
take.
Simonsson testified in his own defense. He admitted he took the items from James'
yard on July 2, 2018. Simonsson said the yard was unkept with over 20 chairs, exercise
equipment, and booths in the yard for at least a month. Simonsson said he knocked on
James' door twice and never received an answer, leading him to believe the furniture was
abandoned and free to take.
The jury convicted Simonsson of misdemeanor theft, and the district court
sentenced Simonsson to 1 year in jail but suspended all but 60 days.
Simonsson timely appeals.
DID SUFFICIENT EVIDENCE SUPPORT SIMONSSON'S THEFT CONVICTION?
Simonsson argues the evidence presented at his jury trial was insufficient to
support his theft conviction. Simonsson asserts he lacked the intent to exercise
unauthorized control over the property or to permanently deprive James of the property
because Simonsson believed the property had been abandoned. The State counters that
the evidence at trial shows James did not abandon the furniture, meaning Simonsson's
control over them was unauthorized. The State also argues Simonsson did intend to
permanently deprive James of his property because Simonsson told May he intended to
take the items to his brother's pond.
Standard of Review
When a criminal defendant challenges the sufficiency of the evidence, the proper
standard of review is "'whether, after reviewing all the evidence in a light most favorable
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to the prosecution, the appellate court is convinced a rational factfinder could have found
the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh
evidence, resolve evidentiary conflicts, or make witness credibility determinations.'
[Citation omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). A guilty
verdict will only be reversed in the "rare case when the court determines that evidence
was so incredulous no reasonable fact-finder could find guilt beyond a reasonable doubt."
State v. Torres, 308 Kan. 476, 488, 421 P.3d 733 (2018). Circumstantial evidence may
sustain a conviction of even the gravest offense if there is evidence to support a finding
that each element of the charged crime was met. State v. Richardson, 289 Kan. 118, 127,
209 P.3d 696 (2009).
Analysis
The State charged Simonsson with theft under K.S.A. 2017 Supp. 21-5801(a)(1),
which defines theft as "[o]btaining or exerting unauthorized control" over the owner's
property "with intent to permanently deprive the owner of the possession, use or benefit
of the owner's property." (Emphasis added.) A person acts "'with intent' . . . when it is
such person's conscious objective or desire to engage in the conduct or cause the result.
All crimes defined in this code in which the mental culpability requirement is expressed
as 'intentionally' or 'with intent' are specific intent crimes." K.S.A. 2020 Supp. 21-
5202(h). Thus, theft is a specific intent crime. Specific intent is a factual question "for the
jury which may be established by acts, circumstances, and inferences and need not be
shown by direct proof." State v. Mitchell, 262 Kan. 434, 437, 939 P.2d 879 (1997).
While conceding it is "probably not the strongest argument," Simonsson argues he
lacked intent to unlawfully and intentionally obtain or exert unauthorized control over the
booths and chairs because he believed the items had been abandoned. However, to
establish that James did abandon the booths and chairs, Simonsson needed to show that
James relinquished the booths and chairs with the intent to abandon them. See Davis v.
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Odell, 240 Kan. 261, 269, 729 P.2d 1117 (1986). The evidence presented at trial shows
the contrary. The booths and chairs were on James' property, with the booths sitting in the
middle of his lawn and the chairs next to the shed on the part of the driveway farthest
from the street. James never told Simonsson he could take the furniture, and no sign
indicated the booths or chairs were free to take. The booths had been moved into the yard
for a garage sale, and they and the chairs were in the yard with some of James' other
property because he was in the process of selling the house. Simonsson could not point to
any evidence showing the booths and chairs had been abandoned other than his own
subjective belief. In fact, James had not abandoned the booths and chairs; he still owned
them.
Because James still owned the booths and chairs and had not given Simonsson
permission to take them, Simonsson's control over the booths and chairs was
unauthorized. Simonsson's subjective belief that the booths and chairs were free to take
does not change this.
In addition to obtaining unauthorized control over the property, the State also had
to prove Simonsson had the intent to permanently deprive James of possession of the
booths and chairs. "'Deprive permanently' means to . . . [t]ake from the owner the
possession, use or benefit of property, without an intent to restore the same." K.S.A. 2020
Supp. 21-5111(f)(1). "'The intent to deprive permanently must be inferred from the overt
facts and circumstances proven. . . . The crucial factual inquiry will be directed to the use
the defendant intended when he obtained or exercised unauthorized control.'" State v.
Warren, 221 Kan. 10, 13, 557 P.2d 1248 (1976).
When Simonsson and Alstrom arrived at May's shop with the booths and chairs,
Simonsson asked if May would like to borrow the furniture for his Fourth of July show.
May said he would take the chairs for customers at his shop but did not want the booths.
Simonsson left the booths in May's lot. May testified Simonsson told him he could
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borrow the furniture for a while before Simonsson took them to his brother's pond.
Simonsson's intent to take the booths and chairs to his brother's pond after letting May
borrow them is evidence that Simonsson did not intend to return the furniture to James;
his intent was to keep the furniture permanently.
Simonsson counters this evidence with the argument that he could not have had
the intent to deprive James of his property permanently because he did not believe James,
or anyone, owned the booths and chairs. Simonsson's defense is that because he believed
the property had been abandoned, he could not form the requisite intent to deprive
someone of it permanently.
Simonsson relies on a burglary case, State v. Wilkins, 269 Kan. 256, 7 P.3d 252(2000), for support. Wilkins lists factors for a court to consider when determining if a
defendant entered a dwelling with the intent to commit a theft. 269 Kan. 256, Syl. ¶ 4.
But burglary was not charged here, and Simonsson's discussion of the factors is really a
list of the evidence Simonsson believes supports his belief the booths and chairs were
abandoned.
But as we have already discussed, Simonsson's abandonment theory lacks merit.
Viewing the evidence in the light most favorable to the State shows the property was not
abandoned. The booths were in the middle of James' yard, not on the curb as Simonsson
claimed, and the chairs were on the part of the driveway farthest away from the street.
James never gave Simonsson permission to take the furniture, and no sign indicated it
was free to take. Simonsson did not intend to return the booths or chairs to James. He
offered the furniture for May to borrow and said he intended to take it to his brother's
pond. The fact he called the police to explain what happened once he learned of the
investigation does not show he lacked the intent to deprive James of the booths and chairs
permanently. See State v. Mayes, 33 Kan. App. 2d 9, 17, 98 P.3d 294 (2004) (explaining
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statute does not require owner suffer actual permanent deprivation of property, only that
defendant intended to permanently deprive owner of property).
As sufficient evidence was presented at trial to allow a reasonable jury to find
Simonsson exercised unauthorized control over James' booths and chairs and intended to
permanently deprive James of his property, we see no error in the jury's verdict
convicting Simonsson of misdemeanor theft.
Affirmed.
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