

State v. De Vries, 780 P.2d 1118 (Kan. Ct. App. 1989).

This case addresses the following issue:

Can a defendant claim a lack of memory as a defense for theft?

This case explored the issue of whether a defendant could claim a lack of memory as a defense for theft. In exploring this issue, the court held that a claim of lack of memory was no defense to a crime. Id. at 1125.

In this case, the defendant and his wife purchased a car for $13,900 from a local dealership. Id. at 1120. The defendant had given the salesman his telephone number and address and told him that the defendant’s mother would send the money to pay for the car. Id. After the test drive, the defendant was allowed to take the car until the money was received, with the understanding he was to return the car to the dealership by 6:00 p.m. that day. Id. However, the money never arrived, and the salesman gave the defendant permission to drive the car overnight and to come back the next day with the money. Id. Nonetheless, the defendant never came back with the car the next day and the address he gave to the salesman turned out not to be his address. Id. As a result, the defendant was charged with one count of felony theft. Id. At trial, the defendant testified that he was an alcoholic and prone to blackouts where he was unable to remember events which occurred either when sober or drinking. Id. Further, the defendant admitted that all of the events could have happened the way the salesman alleged, but he did not remember looking at, driving, or anything concerning the car. Id. Regardless, the defendant was convicted of felony theft and appealed the decision to the Court of Appeals of Kansas. Id.

On appeal, the defendant argued that the jury instruction which provided, “A claim of lack of memory is no defense to a crime” was incorrect because it told the jury to ignore his testimony. Id. at 1125. In responding to the defendant’s argument, the court referenced American Jurisprudence (essentially an encyclopedia of U.S. Law) which stated, “Amnesia is no defense to a criminal charge, unless it is also shown that the accused, at the time of the allegedly wrongful act, did not know the nature of the act and that the act was wrong. In this respect, the fact that the accused is unable to remember events of the crime is in itself no proof of his mental condition when the offense was committed.” Id. According to the court, amnesia may be relevant to the issue of whether an accused was competent to stand trial but could not be used as a defense to disprove the specific intent of theft. Id. In addition to general amnesia, the defendant also attempted to tie the lack of memory instruction to his voluntary intoxication defense. Id. In his claim, the defendant stated that his constant intoxication rendered him incapable of forming the necessary intent to commit theft. Id. In response to this argument, the court cited a case which held that voluntary intoxication was not a defense. Id.

In conclusion, lack of memory is generally not a defense for theft. Id.