Source or Prior Law:

21-129, 21-130, 21-131, 21-132, 21-626.

Revisor's Note:

Section was amended multiple times in 2005 session; see also 21-3110b.

Law Review and Bar Journal References:

"The Kansas Habitual Criminal Act," Bruce E. Miller, 9 W.L.J. 244, 261 (1970).

"Thou Shalt Not Steal: Ruminations on the New Kansas Theft Law," Paul E. Wilson, 20 K.L.R. 385, 392, 395, 399, 405, 406, 407, 408, 409 (1972).

Liability of off-duty police officers, 18 W.L.J. 652 (1979).

"Jurisdiction—Long Arm Jurisdiction over Corporate Directors—Schlatter v. Mo-Comm Futures, LTD.," LesLee Hutties, 32 K.L.R. 736, 750 (1984).

"Corporate Criminal Liability for Injuries and Death," Patrick Hamilton, 40 K.L.R. 1091, 1104 (1992).

Attorney General's Opinions:

DUI; mandatory imprisonment; custody of law enforcement officials. 93-20.

Unlawful use of weapons; law enforcement officer exception. 94-18.

Crimes against property; giving a worthless check. 79-16.

Law enforcement training center; imposition and collection of assessments therefor. 79-38.

Watershed districts; general powers; sale of land acquired through power of eminent domain. 81-240.

Sheriff; special deputies in counties over 100,000. 82-62.

Private investigative or security operations; law enforcement officers ineligible for license. 82-271.

Crimes affecting governmental functions; obstructing legal process or official duty. 82-273.

Crimes against the public safety; unlawful use of weapons; exemption for reserve police officers while on duty. 84-104.

County commissioners; powers and duties; eligibility to office of commissioner. 86-6.

Theft; breach of lease; purchase agreement and failure to return property. 94-134.

Security officer employed at Kansas soldiers' home is not a law enforcement officer. 95-48.

Community correctional officer is not a "law enforcement officer" under private investigative or security operations act. 98-27.

Discussions concerning candidate for municipal court judge should take place openly and not in executive session. 2002-28.

Uniform electronic transaction act does not authorize the use of unsworn electronic digitally signed complaint or supporting affidavit; court rule exception. 2008-4.

Mentioned opinion that held oath under K.S.A. 54-106 is applicable to planning commission and board of zoning appeals members. 2008-15.

CASE ANNOTATIONS

1. "Terrorize" not defined; "terroristic threat" statute attacked as vague, indefinite, uncertain; statute upheld. State v. Gunzelman, 210 Kan. 481, 485, 486, 502 P.2d 705.

2. Subsection (9) cited in upholding statutory presumption under worthless check statute (K.S.A. 21-3707). State v. Haremza, 213 Kan. 201, 206, 515 P.2d 1217.

3. Subsection (12) applied in upholding conviction under K.S.A. 21-3701 (d); evidence supported conviction. State v. Maier, 214 Kan. 547, 520 P.2d 1258.

4. Applied; evidence sufficient to sustain conviction of theft by deception under K.S.A. 21-3701. State v. Adair, 215 Kan. 54, 56, 523 P.2d 360.

5. Applied; malicious prosecution action; probable cause to institute criminal proceedings. Stohr v. Donahue, 215 Kan. 528, 532, 527 P.2d 983.

6. Applied in construing K.S.A. 22-3203; appeal by state in criminal prosecution sustained. State v. V.F.W. Post No. 3722, 215 Kan. 693, 696, 697, 527 P.2d 1020.

7. Subsection (12) applied in determining information charging violation of K.S.A. 21-3426 not defective. State v. Lamb, 215 Kan. 795, 797, 530 P.2d 20.

8. Instruction using definition under subsection (9) not erroneous; prosecution for forgery. State v. Giddings, 216 Kan. 14, 25, 351 P.2d 445.

9. Applied; conviction of attempted theft of swine reversed; evidence insufficient to infer specific intent to steal. State v. Gobin, 216 Kan. 278, 280, 531 P.2d 16.

10. Applied in construing K.S.A. 21-3701 (d); not unconstitutional. State v. Bandt, 219 Kan. 816, 820, 549 P.2d 936.

11. Applied in reviewing conviction of felony theft; judgment affirmed. State v. Coburn, 220 Kan. 750, 754, 556 P.2d 382.

12. Phrase "to deprive permanently" as defined herein applied to K.S.A. 21-3701; conviction of felony theft affirmed. State v. Warren, 221 Kan. 10, 12, 557 P.2d 1248.

13. Subsection (4) mentioned with regard to meaning of "conviction" as an element to the crime set forth in K.S.A. 21-4204. State v. Holmes, 222 Kan. 212, 213, 563 P.2d 480.

14. Part-time policeman, on duty and in full uniform; "law enforcement officer." State v. McDonald, 222 Kan. 494, 495, 565 P.2d 267.

15. Applied; evidence insufficient to establish aggravated kidnapping by deception. State v. Holt, 223 Kan. 34, 41, 573 P.2d 1117.

16. Applied in construing K.S.A. 21-3701; failure to show required intent in prosecution for theft by deception; conviction reversed. State v. Finch, 223 Kan. 398, 400, 573 P.2d 1048.

17. Subsection (10) cited; conviction hereunder affirmed; off-duty police officer working as security guard was "engaged in the performance of duty" as a law enforcement officer. State v. Coleman, 224 Kan. 447, 580 P.2d 1329.

18. Use of unloaded firearm in commission of offenses under Article 34, Chapter 21, requires mandatory sentence. State v. Deutscher, 225 Kan. 265, 271, 589 P.2d 620.

19. Forgery conviction upheld; refusal of trial court to define "intent to defraud" not erroneous; term generally understood. State v. Norris, 226 Kan. 90, 95, 96, 595 P.2d 1110.

20. Cited; firing gun at law enforcement officer legally sufficient to satisfy requirements of aggravated assault on a law enforcement officer; convictions affirmed. State v. Howell & Taylor, 226 Kan. 511, 515, 601 P.2d 1141.

21. "Obtains or exerts control" does not show clear legislative purpose to make crime of theft a continuing offense. State v. Gainer, 227 Kan. 670, 673, 608 P.2d 968.

22. Felony theft conviction upheld; unlawful deprivation of property not lesser included offense of theft. State v. Burnett, 4 Kan. App. 2d 412, 416, 607 P.2d 88.

23. Not error for trial court to give additional instruction as to definition of work "permanent." State v. Weigel, 228 Kan. 194, 199, 612 P.2d 636.

24. Possession of firearm by felon not inherently dangerous and will not sustain conviction under felony murder rule. State v. Underwood, 228 Kan. 294, 305, 615 P.2d 153.

25. Individual engaging in unofficial narcotics investigation is not exempted as a law enforcement officer from K.S.A. 21-4201 because of commission as a special deputy or school security guard. State v. Hargis, 5 Kan. App. 2d 608, 610, 620 P.2d 1181.

26. As used in K.S.A. 21-3705, "property" includes real property and "unauthorized" means without owner's consent. State v. Greene, 5 Kan. App. 2d 698, 702, 703, 623 P.2d 933.

27. Communicated intent of terroristic "threat" may be inferred from physical act. State v. Miller, 6 Kan. App. 2d 432, 435, 629 P.2d 748 (1981).

28. Mentioned in reversing conviction under K.S.A. 21-3701; insufficient evidence to support conviction thereunder. State v. Hamilton, 6 Kan. App. 2d 646, 647, 631 P.2d 1255 (1981).

29. Cited; "obtain" and "obtains or exerts control" defined. State v. Myers, 6 Kan. App. 2d 906, 908, 636 P.2d 213 (1981).

30. Property no longer "stolen" when physical possession recovered by law enforcement officers before delivery to accused. State v. Sterling, 230 Kan. 790, 793, 640 P.2d 1264 (1982).

31. Under facts, theft was a felony inherently dangerous to human life and properly sustained first degree murder conviction under felony murder rule. State v. Lashley, 233 Kan. 620, 632, 633, 664 P.2d 1358 (1983).

32. Question of intent to defraud when worthless check is given for preexisting debts not presented at trial, no appeal. State v. Johnson, 233 Kan. 981, 986, 987, 666 P.2d 706 (1983).

33. Cited in holding direct appeal from sentence following guilty plea permissible under code of criminal procedure. State v. Green, 233 Kan. 1007, 1009, 1011, 666 P.2d 716 (1983).

34. Property under robbery statutes (K.S.A. 21-3426, 21-3427) need not have intrinsic value. State v. Gomez, 234 Kan. 447, 451, 673 P.2d 1160 (1983).

35. Staff doctors of state institutions employees rather than officers; no immunity from civil liability in 1974 for negligent acts. Durflinger v. Artiles, 234 Kan. 484, 505, 506, 673 P.2d 86 (1983).

36. Staff doctors of state institution not immune from civil liability for negligent release of patient prior to tort claims act. Durflinger v. Artiles, 727 F.2d 888, 910 (1984).

37. One who has mechanic's lien on property has superior possessory interest as against general owner. State v. Etape, 237 Kan. 380, 382, 383, 699 P.2d 532 (1985).

38. Cited; intent to deprive permanently under theft statute (K.S.A. 21-3701) discussed. State v. Keeler, 238 Kan. 356, 359, 710 P.2d 1279 (1985).

39. Cited; statute prohibiting making of false writing (K.S.A. 21-3711) not unconstitutionally vague and indefinite. State v. Ward, 11 Kan. App. 2d 147, 148, 716 P.2d 594 (1986).

40. Cited; in felony theft (K.S.A. 21-3701) prosecution, retail outlet has "owner" interest in sales tax collected. State v. Parsons, 11 Kan. App. 2d 220, 221, 720 P.2d 671 (1986).

41. Mentioned; direct appeal from sentence imposed after plea of guilty or nolo contendere (K.S.A. 22-3602) examined. State v. Harrold, 239 Kan. 645, 646, 722 P.2d 563 (1986).

42. Cited by dissent in opinion examining qualified privilege in libel law and interference with prospective business advantage. Turner v. Halliburton Co., 240 Kan. 1, 15, 722 P.2d 1106 (1986).

43. Cited; felony murder rule (K.S.A. 21-3401) as not excluding killing of co-felon from its application examined. State v. Hoang, 243 Kan. 40, 42, 755 P.2d 7 (1988).

44. Cited; doctrine of merger examined; convictions of felony murder (K.S.A. 21-3401) and child abuse (K.S.A. 21-3609) reversed. State v. Lucas, 243 Kan. 462, 466, 759 P.2d 90 (1988).

45. Cited; venue for theft (K.S.A. 21-3701) and conspiracy (K.S.A. 21-3302) where requisite acts for commission occurred in separate counties examined. State v. Dickens, 243 Kan. 574, 577, 757 P.2d 321 (1988).

46. Proof required to establish aggravated kidnapping by deception (K.S.A. 21-3421) examined. State v. Damewood, 245 Kan. 676, 687, 783 P.2d 1249 (1989).

47. Giving worthless check as crime under specific statute (K.S.A. 21-3707) rather than K.S.A. 21-3711 determined. State v. Montgomery, 14 Kan. App. 2d 577, 579, 796 P.2d 559 (1990).

48. Proscription of intent to defraud in K.S.A. 21-3711 examined; other false writings distinguished. State v. Rios, 246 Kan. 517, 792 P.2d 1065 (1990).

49. Unlawful deprivation of property instruction unnecessary absent sufficient evidence where theft (K.S.A. 21-3701) charged. State v. Hall, 246 Kan. 728, 751, 793 P.2d 737 (1990).

50. Asportation element included within theft statute (K.S.A. 21-3701); does not need to be separately set forth. State v. Freitag, 247 Kan. 499, 501, 802 P.2d 502 (1990).

51. Sale of crack cocaine as insufficient to support felony murder conviction determined. State v. Wesson, 247 Kan. 639, 643, 802 P.2d 574 (1990).

52. Trial court's judgment of not guilty of forgery but guilty of issuing or delivering forged instrument found inconsistent. State v. Meyer, 17 Kan. App. 2d 59, 61, 70, 832 P.2d 357 (1992).

53. Conviction of theft by deception of state and federal surplus property; proof required of state examined; statute construed. State v. Schultz, 252 Kan. 819, 850 P.2d 818 (1993).

54. For defendant to be convicted, trial court must accept plea and also enter finding of guilt in open court. State v. Morse, 18 Kan. App. 2d 268, 269, 855 P.2d 87 (1993).

55. Whether theft by threat (K.S.A. 21-3701(a)) is a lesser included offense of robbery examined. State v. Blockman, 255 Kan. 953, 959, 881 P.2d 561 (1994).

56. When court's failure to enter finding of defendant's guilt in open court is harmless error examined. State v. Heffelman, 256 Kan. 384, 386, 886 P.2d 223 (1994).

57. Trial court erred by ruling gas station constituted a dwelling for burglary purposes. State v. Schultz, 22 Kan. App. 2d 60, 63, 911 P.2d 1119 (1996).

58. "Threat" does not require verbal action; communication sufficient where victim heard defendant pump shotgun. State v. Torrance, 22 Kan. App. 2d 721, 727, 922 P.2d 1109 (1996).

59. "Dwelling" construed. State v. Kirkland, 23 Kan. App. 2d 530, 531, 933 P.2d 160 (1997).

60. Aggravated robbery conviction upheld; taking effected by threat even though there also was evidence it effected by shooting. State v. Claiborne, 262 Kan. 416, 425, 940 P.2d 27 (1997).

61. Sufficient evidence of intent to permanently deprive owners of property existed to support underlying conviction for felony murder. State v. Mitchell, 262 Kan. 434, 437, 939 P.2d 879 (1997).

62. Evidence insufficient to prove messages on picket signs were threats constituting aggravated intimidation of a witness. State v. Phelps, 266 Kan. 185, 196, 967 P.2d 304 (1998).

63. Under facts, storage shed previously used as residence considered a dwelling under state burglary statute. Herrick v. State, 25 Kan. App. 2d 472, 474, 965 P.2d 844 (1998).

64. Statements made to private security officer by suspect were not subject to self-incrimination privilege. State v. Welch, 26 Kan. App. 2d 362, 363, 988 P.2d 261 (1999).

65. To classify house as a dwelling it must be shown to be capable of human habitation. State v. Alvis, 30 Kan. App. 2d 889, 53 P.3d 1232 (2002).

66. Attempted possession of marijuana is a forcible felony. State v. Ackward, 281 Kan. 2, 128 P.3d 382 (2006).

67. Cited, burglary statute does not require that dwelling be enclosed. State v. Storey, 37 Kan. App. 2d 555, 558, 154 P.3d 1148 (2007).

68. Burglary in unfinished medical center upheld; "building" and "dwelling" construed. State v. Storey, 286 Kan. 7, 10, 15, 18, 179 P.3d 1137 (2008).

69. Cited in felony murder case involving forcible felony; discussion of availability of self-defense and imperfect self-defense. State v. Kirkpatrick, 286 Kan. 329, 335, 357, 358, 363, 184 P.3d 247 (2008).

70. Cited in discussion of alleged jury instruction error; no error found. State v. Watson, 39 Kan. App. 2d 923, 930, 931, 186 P.3d 812 (2008).

71. Cited; K.S.A. 21-4018 does not require economic loss to victim, only proof of intent to defraud. State v. Johnson, 40 Kan. App. 2d 196, 204, 190 P.3d 995 (2008).

72. Cited; the term "owner" in the criminal code means any person with an interest in the subject property. In re D.A., 40 Kan. App. 2d 878, 882, 197 P.3d 849 (2008).

73. Conviction under K.S.A. 21-4202(a)(2) reversed; prior burglary conviction not proven to be burglary of a dwelling. State v. Roose, 41 Kan. App. 2d 435, 203 P.3d 18 (2009).

74. Terms "obtaining" and "exerts control over" were not different as they related to "unauthorized control" element of theft. State v. Rollins, 46 Kan. App. 2d 17, 257 P.3d 839 (2011).

75. Defendant not deprived of right to jury unanimity as statute defined "obtains control" and "exerts control" to mean same thing and state presented no alternative means to committing crime. State v. Snover, 48 Kan. App. 2d 298, 287 P.3d 943 (2012).

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