State v. Sood

283 P.3d 224, 47 Kan. App. 2d 1098, 2012 WL 3055856, 2012 Kan. App. LEXIS 75
CourtCourt of Appeals of Kansas
DecidedJuly 27, 2012
DocketNo. 105,930
StatusPublished

This text of 283 P.3d 224 (State v. Sood) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sood, 283 P.3d 224, 47 Kan. App. 2d 1098, 2012 WL 3055856, 2012 Kan. App. LEXIS 75 (kanctapp 2012).

Opinion

Green, J.:

Baldhir Sood appeals from his convictions by a jury of one count of computer fraud, in violation of K.S.A. 21-3755, and one count of attempted theft, in violation of K.S.A. 21-3301 and K.S.A. 21-3701. On appeal, Baldhir argues that the trial court erred in denying his request for a jury instruction on ignorance or mistake of fact. We agree and reverse. Baldhir also argues that the State failed to present sufficient evidence to convict him of computer fraud. We disagree and affirm. Finally, Baldhir argues that the State failed to present sufficient evidence to convict him of attempted theft. We disagree and affirm.

Because the attempted theft charge is so closely interwoven with the computer fraud charge, and because we are reversing the computer fraud conviction based on the trial court’s failure to give the ignorance or mistake of fact instruction and a specific intent instruction concerning the computer fraud charge, we reverse the [1099]*1099attempted theft conviction as well and remand both the computer fraud and attempted theft charges for a new trial.

In 2009, the Security Division of the Kansas Lottery (Lottery), as part of its Retailer Honesty Assurance Program, conducted a sting operation to test the integrity of the state lotteiy. The purpose of the sting operation was to “ensure that eveiy player ha[d] a fair chance of being paid if they [had] a winning ticket.” As part of the sting operation, the Lotteiy made counterfeit scratch off tickets for its Scrabble game. When scanned, the counterfeit ticket (sting ticket) would appear to have a prize value of $25,000. To implement the sting operation, the Lottery sent an undercover Lottery enforcement agent to various stores around the state. The agent, dressed in street clothes, would enter the store with a sting ticket and an authentic nonwinning ticket. Then, the agent would present both tickets to the clerk to see if either ticket was a winning ticket. If possible, the agent would tiy to appear distracted to give the clerk the opportunity to check die tickets without the agent seeing the results.

Once a store clerk received the tickets from the agent, he or she would have to enter a three-digit code printed on the ticket and would have to scan the ticket’s bar code at the lotteiy terminal to determine if the ticket was a winner. Generally, when a clerk scanned a winning ticket, the terminal would display one of two messages. If the value of the winning ticket was less than $600, the terminal would display “winner” and would show the prize amount, which could be paid by the store clerk immediately. If the prize value of the ticket was $600 or more, then the terminal display would display “Claim at Lottery.” Moreover, the terminal would play either You’re in the Money or Beethoven’s Fifth Symphony if the ticket was a winning ticket. When a losing ticket was scanned, however, the lottery terminal would not produce sound but merely displayed, “Sorry not a winner.” Under the sting operation, the agent’s actions were dependent on the actions of the store clerk. If the agent was told by the clerk that the sting ticket was a winner, he took the ticket back and left the store. But if the agent was told that the sting ticket was not a winner, he or she would do the following:

[1100]*1100“I would — if it was said in a manner that it was clear, I would say, Thank you, and walk out of the store. If it was said in a manner that was a little bit ambiguous, I would ask, Are you sure it’s not a winner, or Is it not a winner, or Neither ticket’s a winner? And then I would leave once being told that the ticket was not a winning ticket.”

On July 29,2009, Agent Paul Schliffke went to a Shell gas station in Johnson County, Kansas, to conduct the sting operation. The station that Schliffke went to was owned by Baldhir and his wife Jiwan Jyoti Sood. Baldhir was working as the clerk when Schliffke entered the store. After Schliffke entered the store, he purchased a bottle of water and presented Baldhir with the sting ticket and an authentic losing ticket in accordance with the sting operation. Baldhir scanned the tickets and told Schliffke that he did not have a winning ticket. Schliffke then asked Baldhir, “Neither one?” and Baldhir responded that neither ticket was a winner. Neither You’re in the Money or Beethoven’s Fifth Symphony played when Baldhir scanned the tickets. Schliffke left the tickets with Baldhir and left the store.

The next day Jiwan called the Lottery headquarters and asked about the value of the sting ticket. Jiwan’s call was directed to Schliffke. After Schliffke confirmed that Jiwan possessed the sting ticket, he asked her if the ticket was hers. Jiwan stated that the ticket was hers. Schliffke asked Jiwan how much she thought the ticket was worth, and she stated $25,000.

On August 12, 2009, Jiwan went to the Lottery headquarters to fill out a claim form for the sting ticket along with an application to be a lottery retailer at another store owned by her and Baldhir. After Jiwan filled out the paperwork, Schliffke asked her questions about the sting ticket. At first, Jiwan told Schliffke that Baldhir had purchased the sting ticket 2 weeks ago and that she had scratched the ticket. After Schliffke confronted Jiwan, however, she changed her statement and said that Baldhir gave her the sting ticket, which he thought was a winning ticket. Specifically, Jiwan stated that Baldhir had scanned several tickets without getting a read-out message from the terminal. Thus, Baldhir asked a customer what this meant, and the customer told Baldhir that the sting ticket was a winning ticket and suggested that he call the Lotteiy office.

[1101]*1101Later, the State charged Baldhir with one count of computer fraud, in violation of K.S.A. 21-3755, and one count of attempted theft, in violation of K.S.A. 21-3301 and K.S.A. 21-3701. Baldhir’s case proceeded to a trial by jury. At trial, Baldhir testified that Schliffke came into the store, bought a drink, and asked him to check two lottery tickets. Baldhir then scanned the tickets at the terminal, but because no music played when he scanned the tickets, he believed that neither ticket was a winner. Baldhir further testified that after he scanned the tickets, he threw them in the trash without looking at the terminal display.

About 10 minutes later, one of the Soods’ regular customers came into the store with some lotteiy tickets to check. Baldhir told the customer that he thought the terminal was not working properly, but he allowed the customer to check his tickets at the terminal anyway. The customer also checked the tickets from the trash. After the customer checked the sting ticket, he gave the ticket to Baldhir, who wrote a note on the ticket saying that it was a winning ticket. Baldhir then placed the sting ticket, along with the note, in the cash drawer.

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Cite This Page — Counsel Stack

Bluebook (online)
283 P.3d 224, 47 Kan. App. 2d 1098, 2012 WL 3055856, 2012 Kan. App. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sood-kanctapp-2012.