IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 87,407
STATE OF KANSAS,
Appellee,
v.
REBECCA BEACH,
Appellant.
SYLLABUS BY THE COURT
1. When applying the felony-murder rule, the felony and the victim's death do not need to occur simultaneously. Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing was a part of the felony and therefore subject to the felony-murder rule. Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony-murder rule is ordinarily a question of fact for the jury to decide.
2. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
3. In order to sustain a conviction for felony murder, there must be a direct causal connection between the commission of the felony and the homicide to invoke the felony-murder rule. A defendant will be found not responsible for the death which occurs during the commission of a felony only if an extraordinary intervening event supersedes the defendant's act and becomes the sole legal cause of death. PIK Crim. 3d 56.02 (1999 Supp.) sufficiently incorporates the causation required under the law in a case of felony murder. The instructions require not only that the death occur during the commission of the felony but that the killing actually be perpetrated by the defendant or another in the commission of the felony.
4. The conduct of a jury is sometimes devoid of logic, and inconsistent verdicts may result. Even in cases where the two verdicts are irreconcilable, the convictions will not be reversed on grounds of inconsistency. In the case of felony murder, an acquittal of direct responsibility for the underlying felony does not vitiate the conviction of felony murder based on the underlying felony.
5. When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.
6. In a first-degree felony murder case, the alternative underlying felonies of the sale of methamphetamine and aggravated robbery are alternative means of committing felony murder. In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed as long as substantial evidence supports each alternative means.
Appeal from Wyandotte district court, J. DEXTER BURDETTE, judge. Opinion filed April 25, 2003. Affirmed.
Rebecca E. Woodman, capital appellate defender, argued the cause and was on the brief for appellant.
Sheryl L. Lidtke, assistant district attorney, argued the cause, and David C. Smith, assistant district attorney, Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Rebecca Beach appeals her jury convictions and sentences for first-degree felony murder based on underlying felonies of aggravated robbery and the sale of methamphetamine and attempted second-degree intentional murder. The jury acquitted Beach of the underlying felony, aggravating robbery, and a charge of conspiracy to commit first-degree murder. Beach raises the following claims in this appeal: Her felony-murder conviction should be reversed because (1) the underlying sale of methamphetamine is legally and factually insufficient to support felony murder; (2) she was acquitted of the other underlying felony, aggravated robbery; (3) the trial court failed to instruct the jury that it had to be unanimous in deciding which underlying felony supported the felony murder; and (4) the trial court failed to instruct the jury that it had to find that the defendant reasonably could foresee or expect that a life would be taken by engaging in the underlying felonies. For her fifth assignment of error, Beach contends that there was insufficient evidence to establish attempted second-degree murder.
Facts
On June 23, 2000, Land Grant was shot to death while in his automobile waiting to complete a drug transaction. A passenger in his automobile, Margaret Thomas, was also shot and severely injured. The State alleged that Beach, along with Jose Arevalo and Jerry Zugelder, planned to rob and kill Grant. The State also alleged that Beach, Arevalo, and Jesse Jiminez actually carried out the plan. The jury found Beach guilty of first-degree felony murder and attempted second-degree murder.
Grant lived in Topeka and used Beach as a contact for purchasing drugs in Kansas City. Beach knew Grant through an ex-boyfriend who met Grant while in prison. Grant contacted Beach, wanting to know if her ex-boyfriend was out of prison. Grant again contacted Beach 3 to 4 months before the shooting, wanting to do a drug deal. Before the shooting, Grant had purchased drugs in Kansas City through Beach several times previously. Grant would telephone Beach as to the quantity of methamphetamine he needed, drive from Topeka, and pick up Beach, and they would drive to the location where the transaction was to occur. One pound of methamphetamine would cost $6,000 and two pounds $10,000. Beach would make $1,000 per transaction. After completing the purchase, Grant would take Beach home.
At trial, Beach denied any knowledge of a plan to kill or rob Grant during the drug transaction in which Grant was killed. She testified that on the day of the shooting, Grant called her at 10 a.m., told her he would be in Kansas City that night, and wanted to purchase between 4 and 5 pounds of methamphetamine. He later called and said he wanted only 2 pounds. As he was leaving Topeka, Grant called Beach to tell her he would page her when he arrived in Kansas City. Beach tried calling the supplier, but no one accepted her telephone calls. Arevalo was with her when she made the calls, and he told Beach that he would get the drugs.
Beach testified that she and Arevalo eventually met someone riding in a Blazer. Arevalo and the man in the Blazer spoke in Spanish. Arevalo returned to Beach's car and said he had a connection. The man in the Blazer got into Beach's car as well. They drove to 714 Homer, where the transaction would take place. Beach left to meet Grant.
Beach met Grant at a gas station in Kansas City. Grant was with someone, and Beach testified she thought Grant brought the passenger to make her jealous. At that time, Beach told Grant she got a page from her mother and needed to call her. Grant offered his cell phone, but Beach refused and made the call from a pay telephone at the gas station. She then led Grant to 714 Homer. Grant backed in. Beach took the money and asked if her cut was included. She went to the house and knocked on the door. Beach pushed her way into the house and then heard gunshots. Beach thought there was a robbery by someone off the street and shut the door and hid. When the gunshots ceased, Beach stepped outside and saw Arevalo. Beach heard a woman scream.
Beach testified that after the shooting, Arevalo asked Beach to come with him. Beach knew by this time that Arevalo was the one shooting, so she did not want to go with him. Arevalo cocked his gun and told her to get in the car. Beach walked to the car, unlocked it, and let Arevalo in. Beach started driving away when Jiminez ran out of the bushes and jumped in. Jiminez was angry with Arevalo and indicated that he did not think Grant was going to be killed. Beach gave the money to Arevalo. Beach drove Arevalo and Jiminez to Zugelder's house, and Jiminez and Arevalo went inside. Beach did not leave because she was afraid. Arevalo stayed in the house 20 minutes. Finally, Beach left with Arevalo, and they went to Beach's house. Arevalo stayed close to Beach for 3 or 4 days.
Beach was arrested a month later. According to Beach, Arevalo told her that he would not go down alone for the killing, meaning that either Arevalo would kill her or blame her.
Beach's testimony at trial was corroborated by her mother, Carla Simpson. However, her trial testimony contradicted, in part, her statements she made to officers investigating the homicide. The State called Detective William Howard who had been able to link Beach to a location in Raytown based on Grant's cell phone. In her initial discussion with Detective Howard, Beach denied knowing Grant but later admitted her ex-boyfriend knew Grant. Beach later said that she knew Grant was killed from news reports.
Detective Howard testified about a conversation he had with Beach on the way to the detective bureau. Beach admitted she was the go-between in past drug deals for Grant. She admitted that Grant had made arrangements to contact her the day of the shooting but never showed up. She later admitted that she met Grant and took him to another location. She directed Detective Howard to the gas station where she met Grant. She told him that she drove Grant and Thomas to a location other than the scene of the shooting. Beach showed Detective Howard the route she took and where Grant allegedly parked. She also stated that she took the money from Grant.
In a later statement, Beach continued to deny any knowledge that there would be a homicide or robbery. Beach said she was struck on the back of head with a skillet upon entering 714 Homer. In a photo array presented by Detective Howard, Beach identified a man unrelated to this case as the person who lived at 714 Homer. Beach denied knowing who was involved in the homicide. Beach's recorded statement was played for the jury.
The Evidence of Conspiracy
The State called an alleged coconspirator, Gerald Zugelder, to testify. In return for his testimony, Zugelder was permitted to plead to conspiracy to commit murder. Zugelder testified that approximately a week before the murder, he and Arevalo met to discuss the killing of Grant, as they knew Grant would have money through Beach. Zugelder was going to be the trigger man. The plan was for Zugelder to come to Grant's car when Beach walked into the house. Beach was not present at this meeting.
Zugelder testified that there was another meeting at Beach's house approximately 2 or 3 days before the killing with Zugelder, Arevalo, and Beach present. According to Zugelder, Beach wanted Arevalo and Zugelder to make sure Grant died in the robbery because Beach feared Grant would hurt her and her family if he suspected her involvement in the robbery. Zugelder testified that he could not participate in the robbery because his girlfriend would be angry with him for leaving her. Arevalo had to find someone else to help him with the murder and robbery.
The Shooting
The State called Margaret Thomas who traveled with Grant to Kansas City on the day of the shooting. She testified that she knew that Grant was a drug dealer and that he had $36,000 with him that day, a part of which was for the purchase of drugs. Upon arriving in Kansas City, Grant began paging Beach who returned his page and met them at a gas station. Beach needed to call her mother, and Grant offered his cell phone. Beach refused and made the call at the gas station pay telephone. Upon her return from the telephone call, Beach told Grant to follow her. When they arrived, Grant reversed into his parking spot with his automobile facing the street. Beach walked to Grant's car and received from Grant a bag with $13,000. According to Thomas, Beach then walked back to her car.
Thomas testified that she was nervous after Beach left. She told Grant to lock the doors and roll up the windows. At this point, two men began running toward Grant's car, shooting at his car. Thomas screamed and yelled at Grant to drive away. Thomas waited until the shots ceased and then put the car in drive. Thomas said a man appeared at the driver's side window and said, "Bitch, you're gonna die." Then the man shot Thomas. The car was moving at this point, and Thomas eventually jumped out and ran, trying to get someone to stop and help her. Thomas remembers passing out and then regaining consciousness later in the hospital. Thomas testified that as a result of the bullet wounds, she suffered a collapsed lung, the removal of her spleen, and multiple wounds to her stomach.
Aaron Mindrup, who witnessed Thomas in Grant's car after the shooting, testified that he saw a Cadillac roll between two buildings. A woman jumped out of the car, ran to Mindrup's car and said, "Help me. I've been shot." Mindrup, who had medical training, went to the Cadillac to check on the person in the driver's seat. Mindrup found no pulse. Mindrup then ran to Thomas and applied pressure to her chest.
The State also called Jennifer Loman, who was incarcerated for the sale methamphetamine at the same time Beach was being held in jail. She testified that Beach told her she was being held for felony murder for a drug deal she set up. Beach also mentioned at one time that "the girl was not supposed to live."
(1) Sufficiency of sale of methamphetamine to support felony murder
Beach was charged in the alternative with first-degree felony murder under K.S.A. 21-3401(b). A defendant is guilty of felony murder if, "in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto," a human being is killed. The sale of methamphetamine is deemed an inherently dangerous felony in Kansas. See K.S.A. 2002 Supp. 21-3436(a)(14); K.S.A. 65-4161.
The trial court instructed the jury to find Beach guilty of felony murder if it found the following elements:
"To establish this charge, each of the following claims must be proved:
"1. That the defendant, or another, killed Land S. Grant;
"2. That such killing was done while in the commission of, or attempt to commit, or in flight from committing a felony, to-wit: aggravated robbery and/or sale of methamphetamine; and
"3. That this at occurred on or about the 23rd day of June, in Wyandotte County, Kansas."
The court instructed the jury on the definition of sale of methamphetamine (see K.S.A. 65-4161[a] K.S.A. 65-4107[d][3]):
"The elements of sale of methamphetamine are as follows:
"1. That the defendant sold methamphetamine;
"2. That the defendant did so intentionally; and
"3. That this act occurred on or about the 23rd day of June, in Wyandotte County, Kansas."
Beach's argument is twofold. First, she challenges the legal sufficiency of the sale to support felony murder, claiming that the crime of sale was already completed at the time of the killing. Second, Beach argues that the State failed to present sufficient evidence of a causal connection between the sale and Grant's killing.
Beach's first argument concerning legal insufficiency is without merit. The jury was properly instructed to convict Beach of felony murder if it found that Grant was killed "while in the commission of, or attempt to commit, or in flight from committing" sale of methamphetamine or aggravated robbery. This issue is a factual one for the jury. See State v. Jacques, 270 Kan. 173, 189-91, 14 P.3d 409 (2000).
In Jacques, the defendant was convicted of felony murder with possession of cocaine as the underlying felony crime. Jacques and his friend, Everitt, had developed a scheme to purchase drugs. The plan called for Jacques to stay away from the house where the drugs were to be purchased. However, Jacques went to the house where Everitt was purchasing the drugs. Everitt was angry that Jacques failed to follow the plan and a fight broke out between them, resulting in Everitt's stabbing death. Jacques went back into the house and completed the purchase.
On appeal, Jacques raised the sufficiency of the evidence, arguing that he could not be guilty of felony murder because "he did not possess cocaine at the same time that he stabbed Everitt and did not have any intent to possess cocaine at the time." 270 Kan. at 189. The court discussed the necessary timing of the underlying felony crime and the killing:
"When applying the felony-murder rule, however, the felony and the victim's death do not need to occur simultaneously, nor does the felony need to occur before the death. Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony and therefore subject to the felony-murder rule. [Citations omitted.]
"We hold that the death need not occur during or after the commission of the felony to support a conviction for felony murder. The question for the jury is whether the death is within the res gestae of the crime, regardless of the actual sequence of events. [Citations omitted.]" 270 Kan. at 189-90.
In its analysis, Jacques found that the "attempt by Everitt to purchase cocaine, the stabbing of Everitt, and the subsequent purchase of the cocaine by Jacques were part of one continuous transaction." 270 Kan. at 190.
Thus, the appropriate standard of review on appeal is a familiar one set forth in Jacques:
"A review of all of the evidence, when viewed in a light most favorable to the prosecution, shows that a rational factfinder could have found Jacques guilty of felony murder beyond a reasonable doubt. A rational factfinder could have concluded that the stabbing was within the res gestae of the possession of cocaine. Thus, there was sufficient evidence to support the conviction of Jacques for felony murder." 270 Kan. at 191.
See State v. Kaesontae, 260 Kan. 386, 390, 920 P.2d 959 (1996); State v. Hearron, 228 Kan. 693, 696, 619 P.2d 1157 (1980) ("Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony-murder rule is ordinarily a question of fact for the jury to decide.").
Nevertheless, Beach argues that it was after an "exchange" that Grant was shot and killed. However, there was no evidence of an exchange. The only evidence confirmed by Beach's own testimony was that Grant gave Beach money. She was in the middle of the transaction and would not have completed it until she had gone inside the house and returned with the methamphetamine.
Beach also relies upon the broad definition of "sale" to support her argument. This court has in the past noted the broad definition of "sale" but that broad definition of "sale" fails to provide authority for concluding that the crime was completed in this case. See State v. Griffin, 221 Kan. 83, 84, 558 P.2d 90 (1976) ("A 'sale' of drugs is given a much wider meaning than a 'sale' in the context of commercial law."); State v. Mauldin, 215 Kan. 956, 959, 529 P.2d 124 (1974) ("Our statute explicitly requires that the killing be 'committed in the perpetration or attempt to perpetrate any felony.' Under the facts presented in the instant case the commission of the felony [the act of selling heroin] completely terminated when the seller and the purchaser parted company.").
In the light most favorable to the prosecution, the evidence shows a rational factfinder could have found that Grant was killed while Beach was engaged in the sale of methamphetamine. We, therefore, reject Beach's first challenge to the sufficiency of the sale of methamphetamine to support her felony murder conviction.
For her second argument Beach claims that the State presented insufficient evidence of the causal connection between the killing and the sale of methamphetamine. Again our standard of review is one of the sufficiency of evidence to support her felony-murder conviction.
In State v. LaMae, 268 Kan. 544, 555, 998 P.2d 106 (2000), this court described the requirement of a direct causal connection:
"It is true that there must be a direct causal connection between the commission of the felony and the homicide to invoke the felony-murder rule. [Citation omitted.] However, the general rules of proximate cause used in civil actions do not apply. Rather, a defendant will be found not responsible for the death which occurs during the commission of a felony only if an extraordinary intervening event supersedes the defendant's act and becomes the sole legal cause of death. See Bonhart v. U.S., 691 A.2d 160, 162-63 (D.C. 1997) (act of person going back into burning house to rescue dog not sufficient to break chain of causation for felony murder based on arson); State v. Leopold, 110 Conn. 55, 62, 147 A. 118 (1929) (act of boys in attempting to rescue personal possessions from house not sufficient to break chain of causation for felony murder based on arson)."
Beach argues that it was the plan and actions of Arevalo and Jiminez that caused the death of Grant, thereby, amounting to an extraordinary intervening event as that phrase was used in LaMae. Beach points to her acquittal of aggravated robbery of Grant and of the conspiracy to kill Grant. In support, she relies upon our recent decision in State v. Sophophone, 270 Kan. 703, 19 P.3d 70 (2001), and State v. Murphy, 270 Kan. 804, 19 P.3d 80 (2001). Neither case provides support for her argument.
In Sophophone, this court reversed the defendant's conviction for felony murder based upon the underlying felony of aggravated burglary. During the commission of the burglary, the defendant, along with three others, scattered when police officers arrived at the scene. The defendant was tracked down, secured with handcuffs, and placed in a police car. Thereafter, a police officer chased another of the burglars. The other burglar shot at the police officer, who returned fire, killing the burglar.
On appeal, the defendant argued that under the Kansas felony-murder statute, he could not be criminally responsible for the killing because he was in custody at the time of the killing, thus, there was a "'break in circumstances' sufficient to insulate him from further criminal responsibility." 270 Kan. at 705. However, the majority disagreed that this was the issue, finding instead the issue to be "whether [the defendant] can be convicted of felony murder for the killing of a co-felon not caused by his acts but by the lawful acts of a police officer acting in self-defense in the course and scope of his duties apprehending the co-felon fleeing from an aggravated burglary." 270 Kan. at 705. The court found that the defendant could not be so convicted. 270 Kan. at 713.
In State v. Murphy, 270 Kan. 804, this court held that a co-felon shot by the victim of the underlying felony supporting the felony-murder charge cannot be liable for the death of that co-felon.
The causal connection required by LaMae is discussed in State v. Hearron, 228 Kan. at 696:
"Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony and, therefore, subject to the felony-murder rule. Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony-murder rule is ordinarily a question of fact for the jury to decide."
Grant's murder took place at the exact time of Beach's involvement in what she believed to be a sale of methamphetamine, according to her own testimony. Beach received the money from Grant and was on her way to exchange the money for drugs. Beach had not exchanged the money for the drugs, had not returned to Grant, and had not given Grant the drugs by the time the shooting began. Based upon time, the jury rationally concluded the sale of methamphetamine was part of the killing.
Beach's plan to facilitate the drug transaction took Grant to the location of his eventual murder. Grant did not move while Beach went to the house to complete the transaction. Based upon the distance between the sale of methamphetamine and the killing, the jury rationally concluded the sale of methamphetamine was part of the killing.
While Beach, under her theory of the facts, has a visceral argument that Arevalo's appearance with guns blazing constitute an "extraordinary intervening event [that] supersedes the defendant's act and becomes the sole legal cause of death," LaMae, 268 Kan. at 555, Arevalo's act was not, upon further consideration, an extraordinary intervening event in light of her plan to sell methamphetamine. Arevalo learned of the transaction through Beach. Thus, without Beach, Arevalo would not have known that Grant was coming to the city. Further, based upon the nature of the transaction, Beach let it be known to Arevalo that Grant would be carrying a large amount of cash. A person with a large amount of cash intent on engaging in an illegal transaction is a foreseeable target of a violent crime. Thus, based upon the causal connection between the sale of methamphetamine and the killing, the jury rationally concluded the killing was part of the sale of the methamphetamine.
As a final note, the jury had evidence from a coconspirator that Beach planned the robbery and the death of Grant. There was further testimony that it was her intent before the transaction that both Grant and Thomas would be killed before the sale was completed. While the jury acquitted Beach of the aggravated robbery and the conspiracy to kill, her conviction of felony murder in the sale of methamphetamine, as discussed below, does not require reversal. We conclude that a rational factfinder could have concluded upon all evidence considered in a light most favorable to the State that the killing of Grant was part of the sale of methamphetamine and that Arevalo's killing of Grant was not an extraordinary intervening event.
(2) Acquittal of Aggravated Robbery
Beach argues that there was insufficient evidence to support her conviction of felony murder based upon the underlying crime of aggravated robbery. Beach relies on the fact that the jury acquitted her of conspiracy to commit first-degree premeditated murder and aggravated robbery.
If the jury's acquittal of the crime of conspiracy to commit first-degree murder and the crime of aggravated robbery is ignored for a moment, it is clear that the State presented sufficient evidence to support the finding that Beach committed the crime of aggravated robbery. Zugelder testified that 2 or 3 days before the shooting there was a meeting between Zugelder, Arevalo, and Beach in which Beach emphasized the importance of killing Grant. Further, Beach's comments in the presence of her jail cellmate further implicate Beach in the crime of aggravated robbery and the death of Grant, as well as the attempted murder of Thomas. In terms of a traditional sufficiency of the evidence analysis, this would be sufficient to conclude that a rational factfinder could have found Beach guilty beyond a reasonable doubt. See State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000) ("When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.").
However, the jury acquitted Beach of direct culpability for the crime of conspiracy to commit first-degree murder and the crime of aggravated robbery. The question becomes whether this court must accept the jury's finding for purposes of analyzing the felony murder based upon the aggravated robbery. Beach cites no authority to support her position that this court is precluded on appeal from analyzing the felony murder conviction based upon a felony for which the defendant was absolved of direct responsibility.
State v. Shultz, 225 Kan. 135, 142, 587 P.2d 901 (1978) (quoting State v. McCorgary, 218 Kan, 358, 543 P.2d 952 [1975], cert. denied 429 U.S. 867 [1976]), noted that reversal is not required in cases where two verdicts are irreconcilable. See State v. Meyer, 17 Kan. App. 2d 59, 65, 832 P.2d 357 (1992). State v. Wise, 237 Kan. 117, 122-23, 697 P.2d 1295 (1985), summarized a New York case, People v. Murray, 92 App. Div. 2d 617, 459 N.Y.S.2d 810 (1983), as follows: "In the latter case, the court held that the completion of the underlying felony is not an essential element of felony murder, and that an acquittal of the underlying felony is not inconsistent with a conviction of felony murder." Wise also noted that "[a]t any rate, consistency in a verdict is not necessary; a verdict, though inconsistent, is not erroneous so long as there is sufficient competent evidence to support it." Wise, 237 Kan. at 122-23. Wise also specifically held that a charge and conviction of the underlying felony is not necessary to sustain a conviction of felony murder: "We hold that under our statute, K.S.A. 21-3401, an accused need not be prosecuted [for] or convicted of the underlying felony in order to be convicted of felony murder." Wise, 237 Kan. at 123; see State v. Antwine, 4 Kan. App. 2d 389, 396, 607 P.2d 519 (1980) ("While the verdict may be somewhat inconsistent, substantial competent evidence exists to support it and we find no error. Our Supreme Court has recognized that a jury may sometimes reach its verdict partially out of clemency for the accused.").
An inconsistent jury verdict is defined as follows:
"Where an accused is charged with separate and distinct crimes, although of a similar character, in two or more counts, a verdict of acquittal on one or more counts and of conviction on the others is not ordinarily or necessarily inconsistent, at least where each offense requires different evidence or involves factual variations. When accused is convicted on one count and is acquitted on another count, the test is whether the essential elements in the c