The jury found Kunellis guilty of theft by marking the verdict form's box for
exerting unauthorized control over the property,
i.e., which applies to embezzlement-type crimes, and not the box for
obtaining unauthorized control, which applies to physical theft. Similarly, the jury found Kunellis guilty of felony murder for the deaths of both Sloane and Sanders by marking the verdict forms' boxes for theft by
exerting unauthorized control and not the boxes for
obtaining unauthorized control. While the jury verdict forms for both counts of felony murder did inform the jury of the requirement for the “killing having been done in the commission
or flight from” either theft or burglary as the possible bases for conviction—and arguably a jury could therefore have determined guilt by flight from a completed theft—the jury's other completed verdict forms confirm its decisions were based upon the erroneous theft-based instructions. In particular, the jury found Kunellis guilty of burglary, also an inherently dangerous crime and therefore a basis for felony murder. See
K.S.A. 21–3436(a)(9). Yet its completed verdict forms rejected the commission of burglary, and more importantly the flight from a burglary, as the basis for his conviction of felony murder.