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21-5801. Theft. (a) Theft is any of the following acts done with intent to permanently deprive the owner of the possession, use or benefit of the owner's property or services:

(1) Obtaining or exerting unauthorized control over property or services;

(2) obtaining control over property or services, by deception;

(3) obtaining control over property or services, by threat;

(4) obtaining control over stolen property or services knowing the property or services to have been stolen by another; or

(5) knowingly dispensing motor fuel into a storage container or the fuel tank of a motor vehicle at an establishment in which motor fuel is offered for retail sale and leaving the premises of the establishment without making payment for the motor fuel.

(b) Theft of:

(1) Property or services of the value of $100,000 or more is a severity level 5, nonperson felony;

(2) property or services of the value of at least $25,000 but less than $100,000 is a severity level 7, nonperson felony;

(3) property or services of the value of at least $1,500 but less than $25,000 is a severity level 9, nonperson felony, except as provided in subsection (b)(7);

(4) property or services of the value of less than $1,500 is a class A nonperson misdemeanor, except as provided in subsection (b)(5), (b)(6), (b)(7) or (b)(8);

(5) property of the value of less than $1,500 from three separate mercantile establishments within a period of 72 hours as part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct is a severity level 9, nonperson felony;

(6) property of the value of at least $50 but less than $1,500 is a severity level 9, nonperson felony if committed by a person who has, within five years immediately preceding commission of the crime, excluding any period of imprisonment, been convicted of theft two or more times;

(7) property that is a firearm of the value of less than $25,000 is a severity level 9, nonperson felony; and

(8) property that is mail of the value of less than $1,500 from three separate locations within a period of 72 hours as part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct is a severity level 9, nonperson felony.

(c) As used in this section:

(1) "Conviction" or "convicted" includes being convicted of a violation of K.S.A. 21-3701, prior to its repeal, this section or a municipal ordinance which prohibits the acts that this section prohibits;

(2) "mail" means a letter, postal card, package or bag sent through the United States postal service or other delivery service, or any other article or thing contained therein;

(3) "regulated scrap metal" means the same as defined in K.S.A. 2023 Supp. 50-6,109, and amendments thereto;

(4) "remote service unit" means the same as defined in K.S.A. 9-1111, and amendments thereto, and includes, but is not limited to, automated cash dispensing machines and automated teller machines; and

(5) "value" means the value of the property or, if the property is regulated scrap metal or a remote service unit, the cost to restore the site of the theft of such regulated scrap metal or remote service unit to its condition at the time immediately prior to the theft of such regulated scrap metal or remote service unit, whichever is greater.

History: L. 2010, ch. 136, § 87; L. 2011, ch. 86, § 4; L. 2013, ch. 64, § 1; L. 2016, ch. 90, § 2; L. 2022, ch. 22, § 1; L. 2022, ch. 88, § 1; July 1.

Source or Prior Law:

21-3701, 21-3704, 21-3765.

Revisor's Note:

Section was also amended by L. 2022, ch. 73, § 1, but that version was repealed by L. 2022, ch. 88, § 5.

CASE ANNOTATIONS

1. Theft by deception requires the state to prove: (1) That the defendant obtained control over property by means of a false statement or misrepresentation; (2) that the false statement or misrepresentation deceived the victim; and (3) that the victim in whole or in part relied upon the false statement in relinquishing control of the property. State v. Ward, 52 Kan. App. 2d 663, 669, 372 P.3d 417 (2016), review granted (Feb. 15, 2017). See case annotation number 3.

2. There is nothing in the statutory language that restricts the scope of the burglary statute to situations in which the defendant steals or intends to steal something from the interior of a vehicle, as opposed to attempting to steal or actually stealing the vehicle itself. State v. Potts, 304 Kan. 687, 699, 374 P.3d 639 (2016).

3. On the facts of this case, there was insufficient evidence to support the defendant's conviction of theft by deception; both the charging document and instruction to the jury named two possible victims, and there was no proof that either was deceived by defendant. State v. Ward, 307 Kan. 245, 250, 408 P.3d 954 (2018).


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