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NOT DESIGNATED FOR PUBLICATION

No. 122,131

 

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

NICHOLAS R. MORRIS,

Appellant.

MEMORANDUM OPINION

Appeal from Sumner District Court; WILLIAM R. MOTT, judge. Opinion filed September 4, 2020. 

Affirmed.

Mathew W. Mullen, of Mulvane, for appellant.

Mitch Spencer, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., MALONE, J., and WALKER, S.J.

PER CURIAM: Sometimes, things are too good to be true. One morning in January 

2019, Nicholas Ryan Morris used the self-checkout machine at a Walmart. Rather than 

receive the correct change of $12.80, he received $50.80. Someone had made a mistake 

and loaded $20 bills into the machine where $1 bills were normally placed. Impressed 

with his good fortune, Morris came back to that checkout machine six more times that 

morning. Each time he would make a purchase and he then received more change than 

what he was entitled to. He told his girlfriend about this opportunity, but he never said 
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anything to any of the employees about the mistaken change. His luck ran out when the 

store manager later reviewed the security video footage and reported him to the police. 

The jury found Morris guilty of one count of theft of property delivered by 

mistake under K.S.A. 2019 Supp. 21-5802(a). He appeals that conviction, arguing that 

there was insufficient evidence to support his conviction. Our review of the record leads 

us to hold that a rational fact-finder could have found Morris guilty beyond a reasonable 

doubt. He also makes a claim about jury unanimity, but because the court gave a specific 

instruction on that issue, we see no reason to reverse. Thus, we affirm. 

We review questions of the sufficiency of the evidence by looking at all of the 

evidence in a light most favorable to the prosecution and decide whether we are 

convinced that a rational fact-finder could have found the defendant guilty beyond a 

reasonable doubt. State v. Williams, 299 Kan. 509, Syl. ¶ 1, 324 P.3d 1078 (2014). We 

will not reweigh the evidence, assess the credibility of the witnesses, or resolve 

conflicting evidence. State v. Llamas, 298 Kan. 246, 254, 311 P.3d 399 (2013). 

There is ample evidence in this record to support this conviction. Here is what the 

State had to prove. The crime occurs when a person receives another's property and the 

person:

(1) knows the identity of the owner;

(2) fails to take reasonable measures to return the property; and

(3) intends to permanently deprive the owner of the property. K.S.A. 2019 Supp. 

21-5802(a)(1)-(3). 

Here is what was presented to the jury. The State introduced receipts from Morris' 

transactions, security video footage, and still images showing him repeatedly using the 

machine. The State also presented testimony from four witnesses. 
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First, the Walmart manager testified about checking the transaction logs and 

reviewing the surveillance footage; he said Morris had received $494 extra in change 

from 10 transactions. Next, the State called Morris' girlfriend, who had also used the 

machine to receive extra change. She said that Morris had told her about the machine and 

asked her to use it so that employees would not become suspicious of him; she gave the 

extra change she received to Morris and later paid restitution to Walmart. Morris'

acquaintance then testified that he had told her about the machine and she had used it to 

get extra change, but she also later returned the money to Walmart. Finally, a Wellington 

police officer who had questioned Morris testified that Morris had said that he had done 

nothing wrong because he had paid for the items he bought. 

Morris does not explain in his brief how the evidence fails to satisfy the statutory 

elements of the crime. Based on that evidence, a rational fact-finder could have easily 

found that Morris was guilty beyond a reasonable doubt. Sufficient evidence supports his 

conviction, and the court did not err by denying Morris' motion for acquittal. 

At the end of his brief, Morris raises an issue about jury unanimity. He notes that 

the State presented inconsistent evidence about the number of transactions—the State 

alleged 7, the Walmart manager testified that there were 10. Because of that, Morris says 

"A rational factfinder could not be unanimous in its decision as to which one of the seven 

or ten acts presented at trial were committed beyond a reasonable doubt."

It is true that jury verdicts must be unanimous. And Morris correctly argues that 

problems may arise when the State presents evidence of more than one act—as it did 

here—that could constitute the crime charged. 

To avoid unanimous verdict problems in multiple acts cases, the State must either 

inform the jury which acts to rely on during its deliberations or the trial court must 

instruct the jury that it must unanimously agree on the specific criminal acts to convict. 
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See State v. Santos-Vega, 299 Kan. 11, 18, 321 P.3d 1 (2014). The trial court instructed 

the jury that it had to agree on the same acts:

"The State claims distinct multiple acts which each could separately constitute 

the crime of theft of property delivered by mistake. In order for the defendant to be found 

guilty of theft of property delivered by mistake, you must unanimously agree upon the 

same underlying act." 

Because the court gave this instruction and there is no sign that the jury did not 

follow the law, we see no reason to reverse this conviction. 

Affirmed.