The Lottery, the Sting and Specific Intent

After a jury convicted Baldhir Sood of one count of computer fraud, in violation of Kansas Statutes § 21–3755 and one count of attempted theft, in violation of Kansas Statutes §§ 21–3301 and 21–3701, he appealed.  State v. Sood, __ P.3d __, 2012 WL 3055856 (Kansas Court of Appeals 2012).  We will get to the issue he raised on appeal in a moment, after we review the facts that led to his prosecution and conviction.

In 2009, the Security Division of the Kansas Lottery conducted a sting operation to test the integrity of the lottery to “`ensure every player ha[d] a fair chance of being paid if they [had] a winning ticket.’”  State v. Sood, supra. State v. Sood, supra. As part of the sting, the Lottery made counterfeit scratch off tickets (sting tickets) for its Scrabble game; when scanned, a sting ticket “would appear to have a prize value of $25,000.”  State v. Sood, supra.  

The Lottery then sent undercover Lottery enforcement agents, “dressed in street clothes,” to stores around the state. State v. Sood, supra. They would enter the store with a sting ticket and an authentic nonwinning ticket and “present both tickets to the clerk to see if either ticket was a winning ticket.”  State v. Sood, supra.  The agent would “try to appear distracted to give the clerk the opportunity to check the tickets without the agent seeing the results.”  State v. Sood, supra.

Once a clerk took the tickets, he/she would “enter a three-digit code printed on the ticket” and scan its “bar code at the lottery terminal to determine” if it was a winner.  State v. Sood, supra. Generally, when a clerk scanned a winning ticket, the terminal would display one of two messages. State v. Sood, supra. If the value was less than $600, it “would display `winner’ and show the prize amount, which could be paid by the store clerk immediately.” State v. Sood, supra.

If the prize value was $600 or more, “the terminal display would display `Claim at Lottery.’” State v. Sood, supra. It would also “play either You're in the Money or Beethoven's Fifth Symphony if” the ticket was a winner. State v. Sood, supra. When a losing ticket was scanned, the terminal “merely displayed, `Sorry not a winner.’” State v. Sood, supra. If the clerk told the agent the sting ticket was a winner, “he took the ticket back and left the store.” State v. Sood, supra.  But if the agent was told the sting ticket was not a winner, he/she 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.’

State v. Sood, supra.

On July 29, 2009, Agent Schliffke went to a Shell gas station in Johnson County to conduct the sting operation. State v. Sood, supra. Baldhir and his wife Jiwan Jyoti Sood owned this gas station. State v. Sood, supra. Baldhir was working as the clerk when Schliffke entered the store. State v. Sood, supra. Schliffke bought a bottle of water and gave Baldhir “the sting ticket and an authentic losing ticket.”  State v. Sood, supra.

Baldhir scanned them and told Schliffke he did not have a winning ticket. State v. Sood, supra. “Schliffke asked, `Neither one?’” and Baldhir said neither was a winner. State v. Sood, supra. “Neither You're in the Money or Beethoven's Fifth Symphony played when” he scanned the tickets. State v. Sood, supra. Schliffke left the tickets with Baldhir and left the store.  State v. Sood, supra

The next day, Jiwan called Lottery headquarters and “asked about the value of the sting ticket.”  State v. Sood, supra. The call was directed to Schliffke, and after he “confirmed” that Jiwan had the sting ticket, he asked if the ticket was hers. State v. Sood, supra. She said it was. State v. Sood, supra.  Schliffke asked how much she thought it was worth, “and she stated $25,000.”  State v. Sood, supra.

On August 12, Jiwan went to the Lottery headquarters to fill out a claim form for the sting ticket.  State v. Sood, supra. After she filled out the paperwork, Schliffke asked her about it. State v. Sood, supra. At first, Jiwan said Baldhir bought “the sting ticket 2 weeks ago” and she had scratched it. State v. Sood, supra.  

After Schliffke “confronted Jiwan, she . . . said Baldhir gave her the sting ticket, which he thought was a winning ticket.” State v. Sood, supra. Jiwan said he “scanned several tickets without getting a read-out message from the terminal.”  State v. Sood, supra. Baldhir “asked a customer what this meant, and the customer told him the sting ticket was a winning ticket and suggested he call the Lottery office.”  State v. Sood, supra.

Based on this, Baldhir was charged with computer fraud and attempted theft, as noted above.  State v. Sood, supra.  At trial, Baldhir testified that after Schliffke asked him to check the two tickets, he scanned them at the terminal but “because no music played” when he scanned them, he believed neither “was a winner” and “threw them in the trash without looking at the terminal display.” State v. Sood, supra.

About 10 minutes later, one of the Soods' regular customers came into the store with some lottery tickets to check. Baldhir told [him] he thought the terminal was not working properly, but let the customer 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 [it] to Baldhir, who wrote a note on the ticket saying that it was a winning ticket. Baldhir then put the sting ticket, along with the note, in the cash drawer.

State v. Sood, supra.  Regina Moore, another of the Soods’ regular customers, testified and corroborated Baldhir’s account of the events above.  State v. Sood, supra.

After the prosecution and defense had both rested, the court held a conference on jury instructions; Baldhir asked the jury be instructed on mistake of fact as a defense.  State v. Sood, supra. The judge refused, Baldhir was convicted and sentenced to 8 months in prison and 18 months probation.  State v. Sood, supra. On appeal, Baldhir argued that the judge erred in not giving the instruction.  State v. Sood, supra.

The Court of Appeals began its analysis of his argument by noting that the prosecution claimed Baldhir was not entitled to the instruction because the Kansas computer fraud crime “is not a specific intent crime.” State v. Sood, supra. Baldhir argued that it is.  State v. Sood, supra.  As Wikipedia explains, specific intent is essentially an essential element of the intent requirement in criminal law. 

The Court of Appeals noted, first, that the Kansas computer fraud statute defines the offense as “`using a computer, . . . computer network or any other property for the purpose of . . . executing a scheme . . . with the intent to defraud or for the purpose of obtaining money, property, services or any other thing of value by means of false or fraudulent pretense or representation’”.  State v. Sood, supra (quoting Kansas Statutes § 21-3755(b)(1)(B) (emphasis in the original).  It also explained that Kansas courts have found statutes which define a crime by using “the phrase `with intent to’” as requiring specific intent.  State v. Sood, supra.

The court explained that the computer fraud statute under which Baldhir was convicted

prohibits two distinct types of conduct using a computer: (1) to defraud or (2) to obtain money, property, services or any other thing of value by means of false or fraudulent pretense or representation. . . . [T]he State charged Baldhir only under the second prong of this statute. Both prongs of this statute require a specific intent element.

To illustrate, both require the devising or executing of a scheme or artifice with intent (1) to defraud or (2) to obtain money, property, services or any other thing of value by means of false or fraudulent pretense or representation. If the scheme or artifice is reasonably calculated to deceive a person of ordinary intelligence, the devising or execution of that scheme or artifice is relevant to show that the defendant has acted with the intent to defraud.

State v. Sood, supra.

The Court of Appeals also noted that without a court instructing the jury on the

specific intent element -- that the defendant devised or executed a scheme or artifice with the intent (1) to defraud or (2) to obtain money, property, services or any other thing of value by means of false or fraudulent pretense or representation -- the defendant could be convicted of computer fraud without any intent on the defendant's part to deceive or cheat someone. 

State v. Sood, supra.  It also explained that, as Wikipedia’s entry on specific intent notes, attempt crimes, like the attempted theft crime with which Baldhir was charged, are also specific intent crimes.  State v. Sood, supra.

The court then took up the issue of whether it was reversible error for the  judge not to give Baldhir’s instruction on mistake of fact. State v. Sood, supra. It noted, first, that a defendant is entitled on an instruction related to his theory of defense if evidence presented at trial supports the theory, and the instruction.  State v. Sood, supra. The prosecution argued that the evidence did not support the giving of a mistake of fact instruction, so the court reviewed the evidence.  State v. Sood, supra.

As noted above, Baldhir said he believed the sting ticket was not a winning ticket because no music played when he scanned it, a statement Schliffke, who testified for the prosecution, corroborated.  State v. Sood, supra.  The court noted that this, “coupled with Baldhir's failure to check the terminal message, supports [his] assertion that he did not know the sting ticket was a winning ticket when he scanned it.”  State v. Sood, supra.

Baldhir also argued that the prosecution’s evidence failed to show the terminal was working properly when he scanned the tickets.  State v. Sood, supra.  At trial, Schliffke

testified that after he gave Baldhir the tickets, he turned his back to the register. . . . [and] did not see whether `Claim at Lottery’ was displayed on the terminal when Baldhir scanned the tickets. . . Baldhir relies on a 42–page report, marked as Exhibit A, that was admitted into evidence at trial. [It] showed all of the transactions from July 29, 2009, that occurred on the lottery terminal in Baldhir's store. Baldhir notes that the following error codes occurred on the terminal throughout the day:

`[A]n error code reading “# SYND_BAD_EXTERN_RECID” occurred at 3:22:46, the first entry of the day. . . .That same error code appeared four more times at 5:15, fifteen times between 17:06:18 and 18:16:47, and five times at 19:04:06. An error code reading “# BADRE” occurred 39 times throughout the day, both before and after [Baldhir] scanned Schliffke's tickets. An error code reading “179” occurred ten times from 17:09:08 to 17:14:07.’

State v. Sood, supra.

The court found that because the report showed the terminal had “numerous errors” during the day, one can infer that it was not working properly when Baldhir scanned the tickets, which meant he would not have known the sting ticket was a winning ticket when he scanned it.  State v. Sood, supra.  The court also found that these facts supported Baldhir’s argument that the trial judge should have given a mistake of fact instruction to the jury because the evidence was sufficient to justify a “rational factfinder” in accepting Baldhir’s theory of defense, i.e., that it was all a mistake and he neither intended to commit computer fraud nor theft.  State v. Sood, supra.

The Court of Appeals therefore reversed Baldhir’s convictions on both charged and remanded the case for a new trial on both.  State v. Sood, supra.

This news story provides a little more information on the sting, which resulted in five store clerks being charged with trying “steal winnings from the Kansas Lottery.”