State v. Gauger

52 Kan.App.2d 245

366 P.3d 238

STATE of Kansas, Appellee,

v.Robert Alfred GAUGER, III, Appellant.

No. 112,913.

Court of Appeals of Kansas.

Jan. 8, 2016.

Review Denied Feb. 17, 2017.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Michael G. Jones, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., BUSER and SCHROEDER, JJ.

STANDRIDGE, J.

Robert Alfred Gauger, III, appeals his conviction for theft by deception. First, he argues that the district court erred by admitting three exhibits into evidence because they violated the best evidence rule. Second, he argues the district court denied him his constitutional right to a fair trial by instructing the jury that a mistrial would be an expense and inconvenience to the parties, the court, and the taxpayers. For the reasons stated below, we affirm Gauger's conviction.

FACTS

Gauger began working for Linaweaver Construction in August 2012. His employment, however, ended on November 5, 2012. At some point after November 5, 2012, Gauger called Mark Linaweaver, the owner of Linaweaver Construction, and asked him for permission to purchase some car batteries on Linaweaver Construction's account at O'Reilly Auto Parts (O'Reilly). Mark denied this request.

In December 2012, Karen Moon, who was an administrative assistant for Linaweaver Construction at that time, was reviewing a monthly invoice from O'Reilly. Employees would sometimes purchase items at O'Reilly and charge the items to the company's account. Part of Moon's job was to match the receipts submitted by employees to the charges listed on the invoice. If there was a missing receipt, she would print an electronic copy of the receipt from O'Reilly's website. While reviewing the O'Reilly invoice, she noticed that there were missing receipts for the purchase of some batteries and a quart of oil. The charges had been signed for by a person named "Robert." Moon knew, however, that no one named Robert worked at Linaweaver Construction at the time the charges were made.

Moon took the invoice and printed receipts to Mark. He told her he believed Gauger was the person who had made the charges and that Gauger did not have authorization to do so. Moon then called the O'Reilly store where the purchases had been made, and the store credited the charges back to Linaweaver Construction.

In May 2013, the State filed a complaint against Gauger charging him with one count of theft by deception. A jury trial was held on September 15, 2014. Sean Blanke, an employee at the Leavenworth O'Reilly store in November 2012, testified first at trial. He explained that he was familiar with Linaweaver Construction and stated that when the company ordered parts from O'Reilly an employee usually called for parts and had them delivered or would come in to the store and pick them up. Blanke knew that Gauger was an employee of Linaweaver Construction for a short time because Gauger would call and order parts for the company.

Blanke testified that sometime in November 2012 Gauger called and ordered a battery. Blanke asked if Gauger wanted it delivered, but Gauger said he would come in to pick it up. When Gauger came into the store, the order was charged to Linaweaver Construction. Blanke did not have a discussion with Gauger about whether he was authorized to charge the purchase to that account. Blanke testified that he completed a carbon-copy receipt. The store kept a copy and the other copy was given to Gauger.

The State was permitted to introduce into evidence a printed copy of the receipt from this transaction over an objection lodged by the defense based on the best evidence rule. The printed copy of the receipt showed that the transaction took place on November 16, 2012, and that the total charge for the battery was $124.53. There is an illegible signature on the bottom of the receipt, but right above the signature line is a typed copy of the name of the customer signing the receipt. The customer was identified on the printed copy as "Bob." Blanke recalled typing the name Bob because it is short for Robert.

After Moon had her discussion with Mark, she called Blanke and asked him to print off electronic copies of some specific receipts so that she could verify the purchases. Blanke printed electronic copies of the receipts requested by Moon and had the printed copies hand delivered to her. In addition to the receipt discussed above dated November 16, 2012, Blanke testified that he also was instructed to print electronic copies of two other receipts for Moon relating to transactions about which he had no personal knowledge. Electronic copies of the receipts from these other two transactions also were introduced into evidence at trial over Gauger's objection based on the best evidence rule. One of the electronic receipts printed off by Blanke showed a charge to Linaweaver Construction of $119.12 for a battery purchased on November 13, 2012. The customer that signed the receipt was identified on the electronic copy of the receipt as "Robert." The other electronic receipt showed a $123.44 charge to Linaweaver Construction for a battery and a quart of motor oil. The electronic receipt reflected that this transaction occurred on November 14, 2012, and the customer again was identified as Robert.

During Moon's testimony, the State sought to introduce into evidence a copy of the monthly invoice reviewed by Moon that reflected the charges made to Linaweaver Construction's account at O'Reilly in November 2012. The defense objected based on the best evidence rule. When questioned by the court, Moon explained that the original invoice was in her office and the exhibit offered at trial was a duplicate made from the original invoice. Moon explained that the only difference between the original and the copy was that the missing receipts on the original copy were highlighted with a yellow highlighter. Moon offered to bring in the original to show the judge but noted that she would need it back as it was a business record. The district court overruled the objection and allowed the State to introduce the printed invoice—without the yellow highlighting—into evidence. The printed invoice showed, among other things, dates, transaction numbers, some names, and the amount of each charge. The charges shown on the electronic copies of the receipts that already had been introduced into evidence appeared on the monthly invoice.

Alan Arevalo, the manager of the Leavenworth O'Reilly store, also testified at trial. Gauger called Arevalo on two separate occasions to say that he would like to come into the store and "take care of" the purchases he had charged to Linaweaver Construction. Defense counsel objected to this testimony on grounds that neither Gauger nor counsel had ever been told that there was contact between Gauger and Arevalo. Defense counsel also moved for a mistrial, arguing Gauger would be prejudiced if the objection was not sustained because the defense did not have time to adequately prepare for cross-examination in response to Arevalo's testimony. The prosecutor responded to the objection and motion for mistrial by noting that, as alleged by defense counsel, the police reports in the case did not mention any contact between Arevalo and Gauger. The district court denied the motion for a mistrial and thereafter instructed the jury, without objection by the State, to disregard any statements regarding a conversation between Arevalo and Gauger.

Detective Tesh St. John with the Leavenworth Police Department testified he created a photo lineup that included pictures of Gauger and five other individuals with similar characteristics. He showed this lineup to Blanke. Before St. John could even start talking, Blanke identified Gauger as the person who had purchased a battery from him at O'Reilly.

After the State rested, the defense informed the district court that it was not going to present any evidence. During the jury instruction conference, the State requested that the jury be instructed to consider only the transaction that occurred on November 16, 2012, when determining Gauger's guilt. There was no objection by the defense. The jury found Gauger guilty. The district court sentenced Gauger to a 12–month probation term with an underlying prison sentence of 10 months.

ANALYSIS

1. The best evidence rule

Gauger argues that the district court committed reversible error by allowing the State to introduce several documents into evidence at trial over his objections based on the best evidence rule. We review best evidence challenges on appeal for an abuse of discretion. State v. Robinson, 303 Kan. 11, ––––, 363 P.3d 875, 1019 (2015). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied – –– U.S. ––––, 134 S.Ct. 162, 187 L.Ed.2d 40 (2013).

Relying on the best evidence rule, Gauger lodged objections at trial to the introduction of two exhibits containing copies of three O'Reilly receipts and an exhibit containing a copy of a monthly invoice from O'Reilly. The best evidence rule is codified at K.S.A. 60–467 and states in part:

"(a) As tending to prove the content of a writing, no evidence other than the writing itself is admissible, except as otherwise provided in these rules, unless the judge finds that: (1) If the writing is a telefacsimile communication as defined in subsection (d) and is used by the proponent or opponent as the writing itself, such telefacsimile communication shall be considered as the writing itself; (2)(A) the writing is lost or has been destroyed without fraudulent intent on the part of the proponent, (B) the writing is outside the reach of the court's process and not procurable by the proponent, (C) the opponent, at a time when the writing was under the opponent's

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