State v. Becker

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,475

STATE OF KANSAS,
Appellee,

v.

SAMUEL M. BECKER,
Appellant.


SYLLABUS BY THE COURT

1.
Hearsay is evidence of a statement which is made other than by a witness while
testifying at the hearing, offered to prove the truth of the matter stated. K.S.A. 60-460.
Evidence of an out-of-court statement that is not offered to prove the truth of the matter
stated is not hearsay under K.S.A. 60-460.

2.
The theory behind the hearsay rule is that when a statement is offered as evidence
of the truth asserted in it, the credibility of the declarant is the basis for the inference, and
the declarant must therefore be subject to cross-examination.

3.
An appellate court will look at the State's theory of the case as developed by the
evidence and the prosecutor's argument, as well as the instructions to the jury, to
determine whether separate grounds for conviction constitute multiple acts or alternative
means.

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4.
In an alternative means case the jury must be unanimous as to guilt for the
single crime charged, but not as to the particular means by which the crime was
committed, so long as substantial evidence supports each alternative means.

Appeal from Cherokee District Court; OLIVER KENT LYNCH, judge. Opinion filed July 9, 2010.
Affirmed.

Jessica R. Kunen, of Lawrence, argued the cause and was on the briefs for appellant.

Kristafer R. Ailslieger, assistant solicitor general, argued the cause, and Steve Six, attorney
general, was with him on the brief for the appellee.

The opinion of the court was delivered by

ROSEN, J.: From the evening of January 29, 2007, to the morning of January 30,
2007, three men engaged in a course of conduct that would take them across two Kansas
towns and into the homes of several people, ultimately resulting in one death and
multiple charges of kidnapping, assault, battery, and murder. One of those men, Samuel
Becker, stood trial and takes the current appeal. He appeals from his convictions by a jury
of one count of first-degree murder, four counts of kidnapping, one count of attempted
kidnapping, two counts of aggravated battery, two counts of aggravated assault, and one
count of aggravated burglary. He complains on appeal of various trial errors, including
the admission of hearsay testimony, misconduct by the prosecutor, failure by the
prosecution to prove various parts of its case, and improper jury instructions. We find no
error of such consequence as to require reversing any of his convictions.

On January 29, 2007, Edward Gordon discovered that someone had broken into
his house in Baxter Springs and stolen a safe in which he kept money and a supply of
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drugs that he kept for sale. He called Geoffrey Haynes, who gave Gordon and Gordon's
girlfriend, Chandra Dupree, a ride to Pittsburg. There they met Aaron Graham and the
defendant Becker.

Gordon, Graham, and Becker discussed how to determine who had stolen the safe
and how to retrieve it. The three picked up a handgun at Graham's father's house and then
drove to the home of George Rantz in Riverton. When Rantz answered the door, the three
forced their way into the house. They proceeded to interrogate him about the missing
safe, during which Graham waved the gun in the air and Becker suggested that someone
was going to pay for the theft with his life. Rantz told them he did not know about the
safe, and Becker urged Gordon and Graham to "shoot the motherfucker" to make an
example out of him. Rantz's girlfriend, Haley Watkins, said she was going to call the
police, and the three intruders became calmer. Rantz then said he would go with them to
find the thief, and they all went back to Haynes's car and proceeded to the home of Drew
Thiele.

Gordon, Graham, and Becker forced their way into Thiele's house and began
questioning him about the contents of the safe and where he had been that night. During
this questioning, Becker hit Thiele in the face with his fist. They then knocked Thiel
down, and Becker beat him while Gordon pointed the gun at him. During the beating,
Becker shoved his thumb into Thiele's eye and choked him. They finally left Thiele on
the floor, telling him not to call the police and that he should have the drugs and money
available at 5 a.m. or they would kill him.

They dropped Dupree off and made several other stops before driving to Gordon's
house. All five men—Gordon, Graham, Becker, Haynes, and Rantz—went inside. Dupree
showed up a short time later because she had forgotten her cell phone. Gordon then called
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Brad Ashe and asked him to come to his house. Ashe and his girlfriend, Natalie Stephens,
came into the house, where Graham approached Stephens, demanding to know who she
was and telling her to leave.

Inside the house, Graham and Becker shouted at and threatened Ashe and waved
the gun around. They forced him to sit on the couch and asked him questions about the
missing safe. After Ashe denied any knowledge about it, Becker began to punch him and
hit him with his knee. Stephens returned to the house and sat behind the couch while the
men beat and questioned Ashe. At one point, Graham put the gun in Ashe's mouth and
threatened to shoot him.

Dupree attempted to leave the house, but Graham stopped her, telling her that she
was "not fucking going anywhere" and that she had to go to the back bedroom, which she
did out of fear for her safety. Graham then discovered Stephens behind the couch and
directed her to sit next to Ashe on the couch. Graham held the gun to her head and asked
Ashe whether Stephens's life was worth five thousand dollars.

Gordon, Graham, and Becker then sent Haynes, Rantz, and Stephens to the back
bedroom with Dupree, and they complied because they were afraid and thought they had
no reasonable choice in the matter. The three men continued to beat and question Ashe,
who mentioned the name of J-Rich, a nickname for Jamey Richardson.

While subjecting Ashe to the interrogation and beatings, Gordon and Graham went
back and forth between the living room, where Ashe was located and the bedroom, where
Dupree, Rantz, Haynes, and Stephens were located, while Becker stayed with Ashe. They
threatened their captives with the gun and told them that they would shoot anyone who
tried to leave the room. When Gordon and Graham went to take the cell phones from the
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people in the bedroom, Becker wielded two hacksaws at Ashe and asked him, "Do you
know what kind of sick motherfucker I am?"

Around that time, Jamey Richardson arrived at the front door, apparently in
response to a call from Gordon. Gordon and Graham let him into the house, and Graham
pointed the gun at him. The three men directed him to sit on the couch, where they
ordered him to tell them where the missing safe and its contents were. Graham pointed
the gun at Richardson, who attempted to knock it away. Richardson then grabbed the
barrel of the gun and forced it up toward the ceiling as he tried to stand up. Gordon,
Graham, and Becker acted in concert to physically force him back onto the couch.

Richardson then suggested that they all go talk to someone else and again got up
from the couch. He got as far as the front door, although Graham continued to train the
gun on him and Graham attempted to block his path. Richardson went outside, and
Gordon, Graham, and Becker followed him.

Ashe, who remained in the house, heard people yelling outside, followed by a
gunshot. He heard someone say, "I shot your boy," and then Gordon returned to the
house, ran through the house, and then ran back outside. A few seconds later he heard a
second gunshot. Gordon, Graham, and Becker came back inside and told everyone to
leave the house. Everyone ran from the house, during which time Rantz and Haynes saw
Becker holding the gun.

As they ran from the house, Richardson screamed for help, but no one stopped to
give him aid. A bullet had struck him in the leg, severing two arteries and causing him to
bleed to death shortly after he was shot. At around 2 a.m., police, responding to calls
from neighbors, found Richardson dead in the driver's seat of his car.

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The following day, Becker admitted to Graham's mother that he had shot
Richardson. He told her that Richardson had somehow taken the gun, which fired, and
Richardson said he had "shot your boy. The gun then somehow fell to the ground, and
Becker, fearing that Graham had been shot and that he himself would be shot next,
picked up the gun and shot Richardson in self-defense.

Becker was eventually charged with a number of felonies: one count of aggravated
burglary for entering a structure with the intent to commit aggravated assault against
George Rantz and/or Haley Watkins; one count of aggravated assault against George
Rantz; one count of kidnapping of George Rantz with the intent to injure or terrorize
Rantz or Ashe or Richardson; one count of aggravated burglary for entering a structure
with the intent to commit aggravated assault against Joseph Thiele; one count of
aggravated battery against Thiele; one count of aggravated battery against Ashe; one
count of aggravated assault against Natalie Stephens; one count of kidnapping of Natalie
Stephens with the intent to injure or terrorize Stephens or Ashe or Richardson; one count
of kidnapping of Chandra Dupree with the intent to injure or terrorize Dupree or Ashe or
Richardson; one count of kidnapping of Richardson with the intent to injure or terrorize
Richardson; one count of kidnapping of Ashe with the intent to injure or terrorize Ashe;
and one count of first degree felony murder for the death of Richardson while Becker was
kidnapping Stephens and/or Dupree and/or Richardson.

A jury found Becker not guilty of the first count—aggravated burglary of the
residence of Rantz and/or Watkins. The jury found him guilty of the lesser offense of
attempted kidnapping of Richardson and guilty of every other count as charged. The
district court sentenced him to an aggregate term of life plus 68 months.

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ADMISSION OF HEARSAY EVIDENCE


Becker contends that a number of statements made out of court were erroneously
admitted in violation of the prohibition against hearsay evidence. He also contends that
the admission of the statements violated the Confrontation Clause of the United States
Constitution.

K.S.A. 60-460 defines hearsay as "[e]vidence of a statement which is made other
than by a witness while testifying at the hearing, offered to prove the truth of the matter
stated. Evidence of an out-of-court statement that is not offered to prove the truth of the
matter stated is not hearsay under K.S.A. 60-460. Boldridge v. State, 289 Kan. 618, Syl. ¶
12, 215 P.3d 585 (2009). The theory behind the hearsay rule is that when a statement is
offered as evidence of the truth of the matter stated, the credibility of the declarant is the
basis for its reliability and the declarant must therefore be subject to cross-examination.
289 Kan. at 634.

This court has identified a number of out-of-court statements that do not constitute
hearsay under K.S.A. 60-460 because they were not used to prove the truth of the matter
that the statements asserted. These include statements material as part of the issue of a
case; statements comprising verbal parts of an act; statements used circumstantially to
give rise to an indirect inference but not to prove the matter asserted; and statements
tending to show the defendant's state of mind. 289 Kan. at 634. Statements offered into
evidence not to prove the truth of the statement but "merely to show that the statements
were said" or to show their effect on the listener accordingly do not constitute hearsay.
State v. Harris, 259 Kan. 689, 699, 915 P.2d 758 (1996).

Becker presents a list of out-of-court statements that came before the jury through
various witnesses. He complains that these statements constituted impermissible hearsay
8



testimony and that a prosecution subterfuge deterred him from registering
contemporaneous objections. The statements consisted, in the main, of threats to
individuals, such as: "[T]hey shut the door and said if anybody comes out of here we're
going to shoot them," and "They told me that they were going to be back at 5:00 a.m. and
I better have drugs or money or they were going to kill me. The statements also included
directives, such as Graham telling the captives in the bedroom that they needed to leave
the bedroom door open and Graham and Gordon demanding that they surrender their cell
phones.

These statements did not constitute hearsay because they were not presented to
prove the truth of the assertions. It is irrelevant and unnecessary to know, for example,
whether Graham and Gordon really would have shot anyone who attempted to leave the
back bedroom while they interrogated Ashe and Richardson. The situation in this case is
different from that in Harris, where the out-of-court threatening statement was offered to
prove premeditation in the killing of the person about whom the threat was made. Here,
the threats were offered as explanations for why the people who heard the threats
responded as they did—staying in a room, for example, or leaving for another town.

Similarly, directives to stay in a certain place or to surrender cell phones were not
susceptible to a determination of truthfulness by the jury. Directives are in the imperative
mood, unlike statements of fact, which are in the indicative mood. See United States v.
Bellomo, 176 F.3d 580, 586 (2d Cir. 1999) (statements offered as evidence of commands
or threats directed to the witness, rather than for the truth of the matter asserted, are not
hearsay); State v. Leonard, 104 Ohio St. 3d 54, 71-72, 818 N.E.2d 229 (2004) (statements
that cannot be true or false are not assertions and cannot be hearsay). Like the threats,
these statements came into testimony in the course of explaining why other people
engaged in certain conduct. A statement offered to prove the effect on the listener is
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admissible through the person who heard it. State v. Patton, 280 Kan. 146, 162, 120 P.3d
760 (2005).

We note that, although Becker did not make a contemporaneous objection to the
admission of these statements, he had been led to believe that the State intended to call
Gordon. Even though Gordon remained available for Becker to call as a witness, he was
not available for cross-examination because the State ultimately elected not to put him on
the stand. As the State conceded at oral argument, Gordon's presence would therefore not
have shielded hearsay statements attributed to him. See State v. Fisher, 222 Kan. 76, 81-
82, 563 P.2d 1012 (1977) (declarant must testify at trial before hearsay evidence may be
admitted under statutory exception to hearsay rule for previous statement of person who
is present and available for cross-examination with respect to that statement and its
subject matter). We also note that the safer practice for defense counsel is to make a
contemporaneous objection to the admission of hearsay testimony. See Fisher, 222 Kan.
at 84 (failure to make timely, specific objections to testimony alleged to have been
erroneously admitted bars appellate review of testimony).

Here, however, whether the State duped Becker into relying on Gordon's
testimony in order to allow into evidence the out-of-court statements absent a
contemporaneous objection bears no consequence. The out-of-court statements did not
violate statutory prohibitions on hearsay testimony because they were not hearsay. These
statements were made in the course of the criminal activity, not in the course of the
subsequent investigation. Because the statements were not testimonial, that is to say, they
were not made in the reasonable expectation of eventual use in a criminal proceeding, the
statements also did not violate the Sixth Amendment Confrontation Clause. See State v.
Davis, 283 Kan. 569, 574-75, 158 P.3d 317 (2007) (nontestimonial evidence is examined
in light of state hearsay statutes); see also Crawford v. Washington, 541 U.S. 36, 51-52,
158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004) (testimonial statements include statements
10



made in circumstances that would cause objective witness to reasonably believe that the
statement would be available for use in future criminal proceedings).

PROSECUTORIAL MISCONDUCT

Becker contends that the prosecutor made statements relating to aiding and
abetting that improperly changed the burden of proving intent. He alleges that these
comments implied that mere presence at a criminal undertaking may suffice to establish
guilt as an aider and abettor without demonstrating the same intent as the principals.

When a defendant claims that a prosecutor committed reversible misconduct, the
prejudicial nature of alleged errors is analyzed in the context of the trial record as a
whole. State v. Warledo, 286 Kan. 927, 948, 190 P.3d 937 (2008).

Appellate review of an allegation of prosecutorial misconduct involving improper
comments to the jury requires a two-step analysis. First, the appellate court decides
whether the comments were outside the wide latitude that the prosecutor is allowed in
discussing the evidence. Second, if misconduct is found, the appellate court must
determine whether the improper comments constitute plain error; that is, whether the
statements prejudiced the jury against the defendant and denied the defendant a fair trial.
State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009). McReynolds sets out
additional analytic steps for the court if it finds misconduct.

Becker complains about comments that the prosecutor made during the course of
both voir dire and closing argument. During voir dire, the prosecutor informed the jury
that it did not have to find that Becker and his cohorts intended to kill Richardson but
only that Richardson was killed during the course of their committing a felony.

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Becker argues on appeal that this statement of the law was incorrect because the
prosecutor failed to inform the jury that the State must prove intent to commit the
underlying felonies. We find no reason, however, to create a requirement that a
prosecutor must set out every element of every charged crime during voir dire. The
prosecutor's general statement of the nature of the case was accurate.

Also during voir dire, the prosecutor told the jury that a person can be held
responsible for the actions of another person:

"[I]n certain circumstances when a person can be held responsible for the actions of
another person. And that's kind of where we get that in for a penny; you might as well bid
a whole dollar. It's like being a little bit pregnant. Even if you're involved a little bit
you're involved the whole way.

During closing argument, the prosecutor expanded on this theme:

"I'm a big high school wrestling fan. My son wrestles, I talk about it all the time. We
were at a tournament up in Derby, Kansas, this weekend and the kids did pretty good;
they won a trophy, a team trophy, and they placed. And at the end you know how these
sports things do, the kids all gathered around the trophy and they were taking a picture.
And a little 119 pounder, he was off to the side. The coach said, 'Chase, come on. Get
over here. Get in the picture.' Chase said, 'Coach, I didn't have a good tournament. I'll
just be back here.' He said, 'No you're a part of this team just like everybody else. You
own as much of this trophy as anybody else.'
"Today we're here for a much different picture and we find the defendant wanting
to step back, step out of the picture saying, I'm not part of that; that's somebody else.
"Ladies and gentlemen, today is the day that this defendant needs to step up; that
he must step up and be held responsible. Today is the day that you tell him, you're a
member of the team that did that. You own this picture. You are responsible for that.

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He also stated:

"We talked in voir dire about the concept in for a penny and in for a pound. And
we also talked about the fact that you can't be a little bit pregnant. And if you aid
somebody, if you're an aider and abettor you can't be a little bit involved.

In addition, he stated:

"You can't be a little bit involved in a kidnapping. [If] [y]ou're involved, you're
involved. If you're involved with the kidnapping you're guilty of felony murder.

Taken out of context, these comments may incorrectly suggest that intent to
commit the crimes is not essential to proving guilt as an aider and abettor. In the context
of his entire argument, however, the prosecutor clearly stated that intent was an essential
element. The prosecutor made numerous references to the jury having to find intent. For
example, the prosecutor said, "So each time you go to a different count you have to ask
yourself did he aid and abet. And when you aid and abet you have to aid and abet with
the intent to promote or assist in the commission of the crime. Later, the prosecutor said,
"It doesn't matter if he was terrorized. What matters is if they intended to terrorize him.
That was the whole plan; get these people over here, threaten them and find out where the
safe is. So was there intent to terrorize him?"

The prosecutor's comments about aiding and abetting were not improper. They
must be read in conjunction with the closing argument as a whole, which asserted the
need to find intent on Becker's part, and in light of the evidence as a whole, which
showed that Becker behaved much like a principal and engaged in conduct from which it
could easily be inferred that he intended the elements of the crimes charged.

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Because the prosecutor accurately stated the law, it is unnecessary to engage in the
additional analysis set out in McReynolds. We find no error.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE KIDNAPPING AND FELONY-MURDER
CONVICTIONS

Becker argues on appeal that he was convicted of aiding and abetting Gordon and
Graham in the kidnappings and attempted kidnapping, but that the State failed to provide
sufficient evidence to support a finding that he had the necessary intent to kidnap the five
victims. Because kidnapping is a specific-intent crime, the State was required to prove
that he had the same specific intent as the principals. A review of the evidence before the
jury reveals that ample evidence existed showing that Becker acted as both a principal
and as an aider and abettor of the various kidnappings of which he was convicted.

When examining the sufficiency of the evidence in a criminal case, the standard of
review is whether, after reviewing all the evidence 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. State v. Gant, 288 Kan. 76, 83, 201 P.3d
673 (2009).

In order to obtain a conviction for kidnapping, the State must prove specific intent.
See, e.g., State v. Wiggett, 273 Kan. 438, Syl. ¶ 8, 44 P.3d 381 (2002). For a defendant to
be convicted of a specific-intent crime on an aiding and abetting theory, that defendant
must have the same specific intent to commit the crime as the principal. State v.
Overstreet, 288 Kan. 1, 13, 200 P.3d 427 (2009).

As Becker was charged and as the jury was instructed, the State had to prove not
only that Becker had the general intent to take or confine a person by force, threat, or
deception, but also that he had the specific intent to inflict bodily injury or to terrorize the
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victim or another. See K.S.A. 21-3420(c). The State was also required to prove that he
intentionally aided or abetted another to commit the crime with the intent to promote or
to assist in the commission of the crime. K.S.A. 21-3205(1); PIK Crim. 3d 54.05.

A conviction of even the gravest offense may be sustained by circumstantial
evidence. State v. Scaife, 286 Kan. 614, 618-19, 186 P.3d 755 (2008). Specific intent may
be shown by acts, circumstances, and reasonable inferences deducible therefrom; it need
not be shown by direct proof. State v. Johnson, 258 Kan. 61, 67, 899 P.2d 1050 (1995);
State v. Harper, 235 Kan. 825, 828, 685 P.2d 850 (1984) (intent underlying entry into a
building "is rarely susceptible of direct proof; it is usually inferred from the surrounding
facts and circumstances").

The State argued that Becker was guilty of kidnapping Dupree, Rantz, and
Stephens under a theory of aiding and abetting. This was not a case in which the
defendant was sitting passively in the car waiting to drive the other perpetrators away;
Becker was actively and violently engaged in the same enterprises as Gordon and
Graham. When the three went to the home of Rantz and Watkins, all three forced their
way into the house, all three engaged in threatening Rantz, and Becker urged Graham to
shoot Rantz. At Gordon's house, Rantz, Dupree, and Stephens were all sent to a back
bedroom by Gordon, Graham, and Becker. There was abundant testimony that all three of
the men took part in beating and threatening Ashe and forcing him to stay on the couch.
There was also abundant testimony that Becker stood guard over Ashe while Gordon and
Graham went to the bedroom, threatened the captives there with the gun, and took their
cell phones. A jury could easily conclude that Becker acted in concert with Gordon and
Graham to carry out the kidnapping of Dupree, Stephens, and Richardson. In fact, it
would have taken a remarkable leap of logic for a jury to conclude that Becker did not
intend to participate fully in all of the criminal acts, up to and including the shooting.

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Becker also contends that insufficient evidence supported a claim that the
kidnappings of Stephens and Dupree and the attempted kidnapping of Richardson were
carried out with the intent to terrorize or to inflict bodily injury on Ashe or Richardson.
The three victims in the bedroom were kept there and deprived of their cell phones while
first Ashe and then Richardson were threatened and beaten. A jury could reasonably
conclude that the purpose of isolating them was to prevent them from aiding Ashe and
Richardson, to prevent them from calling for help for Ashe and Richardson, and to reduce
the likelihood that they would witness the harm and threats inflicted on Ashe and
Richardson.

Finally, Becker maintains that no separate harm was done to Ashe and Richardson
while they were held captive beyond the terror and threats used to keep them restrained.
Becker argues that the same terror could not be used as the means of restraint and the
objective of the kidnapping. In the case of Ashe, however, there were not only threats and
the showing of a gun and handsaws, there was also repeated violent beating in the course
of interrogating him about the missing safe. In the case of Richardson, there was both the
physical restraint demonstrated by the three men tackling him and pushing him onto the
couch and the terror intended by holding a gun to his head while asking him about the
safe. Although the elements of forcible restraint and intent to terrorize and do harm
overlapped, they were not redundant, and different facts could be used to demonstrate
different elements of the offenses.

Because the State offered more than adequate evidence supporting the kidnapping
convictions, Becker's challenge to the felony-murder conviction based on the sufficiency
of the evidence also fails.

16



FAILURE TO GIVE A UNANIMITY INSTRUCTION

The jury was instructed that, in order to find Becker guilty of felony murder, the
State had to prove that Richardson was killed while in the commission of the kidnapping
of Stephens and/or the kidnapping of Dupree and/or Richardson. Becker did not request a
specific unanimity instruction. Becker now contends on appeal that allowing the jury to
convict him of felony murder based on three alternative underlying felonies, without
requiring the jury to specify on which felony it relied, denied him a unanimous verdict.

In the absence of a requested unanimity instruction, an appellate court reviews for
error under the clearly erroneous standard. State v. Foster, 2010 WL 2331156, at *3
(Kan. 2010); State v. Voyles, 284 Kan. 239, Syl. ¶ 4, 160 P.3d 794 (2007). We will find
instructions to be clearly erroneous only if we are firmly convinced that there is a real
possibility the jury would have rendered a different verdict had the trial error not
occurred. State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).

Becker contends that this is a multiple acts case—the three kidnappings
constituted multiple acts, each one requiring unanimity by the jury as to guilt. The State
counters that this is an alternative means case—that any of the three kidnappings or the
kidnappings in combination could provide a basis for the felony murder.

Alternative means and multiple acts cases are distinguished as follows:

"'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
so long as substantial evidence supports each alternative means. [Citations omitted.] In
reviewing an alternative means case, the court must determine whether a rational trier of
17



fact could have found each means of committing the crime proved beyond a reasonable
doubt. [Citations omitted.]

"'In multiple acts cases, on the other hand, several acts are alleged and any one of
them could constitute the crime charged. In these cases, the jury must be unanimous as to
which act or incident constitutes the crime. To ensure jury unanimity in multiple acts
cases, we require that either the State elect the particular criminal act upon which it will
rely for conviction, or that the trial court instruct the jury that all of them must agree that
the same underlying criminal act has been proved beyond a reasonable doubt. [Citations
omitted.]' [State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 (1988)]. State v.
Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994).

This case involved alternative means. A single offense was committed—the
unlawful shooting of Richardson —which could have been committed in more than one
way. In an alternative means case the jury must be unanimous as to guilt for the single
crime charged, but need not be unanimous as to the particular means by which the crime
was committed, so long as substantial evidence supports each alternative means. State v.
Wright, 290 Kan. 194, ___, 224 P.3d 1159, 1164 (2010). It is for this court to determine
on review whether each of the means presented—three different kidnappings or
attempted kidnappings—could, as a matter of law, have been accepted by the jury as
proven beyond a reasonable doubt.

On the sufficiency of evidence point, Becker argues that the prosecution's case hit
a stumbling block because of the completion of the acts of kidnapping. He contends that
Richardson got off the couch after being forced to sit down and the kidnapping attempt
was completed at that time. He further contends that the shooting of Richardson was in
no way causally connected to the kidnappings of Dupree and Stephens. In other words,
because all or part of the jury could have relied on a felony with an inadequate
connection to the murder, Becker asserts he is entitled to reversal.

18



Acceptance of this argument requires an impossible stretch of the imagination.
The four people in the back bedroom were being held there in part so that Becker and the
others could terrorize and beat Ashe and then Richardson. The kidnappings and the
murder were closely related. Although Richardson got up to leave the house, the
perpetrators attempted to stop him, and it was as he was attempting to escape his captivity
that he was shot. We cannot conclude that the attempted kidnapping of Richardson was
completed by that time.

It is not, however, necessary to engage in speculation about whether the jury
properly considered the causal link between the kidnappings and the shooting. The jury
was instructed that, in order to find Becker guilty of felony murder, it would have to find
that the shooting "was done while in the commission of" the kidnappings. Appellate
courts presume that a jury followed the jury instructions. City of Mission Hills v. Sexton,
284 Kan. 414, 438, 160 P.3d 812 (2007). In essence, Becker urges this court to speculate
that the jury did not follow the instruction; that it instead ignored the "while in the
commission of" language and possibly determined that the kidnappings were already
completed and thus unrelated to the shooting. This speculation is particularly
unwarranted, given the great weight of evidence against Becker that was presented at the
trial.

We find there was no error in the failure to give a specific unanimity instruction.

FAILURE TO GIVE AN UNINTENTIONAL SECOND-DEGREE MURDER INSTRUCTION

The district court instructed the jury on felony murder, intentional second-degree
murder, and involuntary manslaughter. Becker contends on appeal that the trial court
erred by failing to give an instruction on the lesser included offense of unintentional
19



second-degree murder. He did not object at trial to the lack of that instruction, and he did
not propose the instruction.

An appellate court reviewing a district court's failure to give a particular
instruction applies a clearly erroneous standard where a party neither suggested an
instruction nor objected to its omission. State v. Cooperwood, 282 Kan. 572, 581, 147
P.3d 125 (2006); see K.S.A. 22-3414(3).

"When a murder is committed during the commission of a felony, the rule
requiring instructions on lesser included offenses does not apply. The felonious conduct
is tantamount to the elements of deliberation and premeditation that are otherwise
required for first-degree murder. It is only when the evidence of the underlying felony is
weak, inconclusive, or conflicting that instructions on lesser included offenses may be
required. State v. Hoffman, 288 Kan. 100, Syl. ¶ 4, 200 P.3d 1254 (2009).

The State relied on three kidnapping counts to establish the felonies underlying the
felony-murder count. Becker argues that the evidence supporting the kidnappings was
weak, inconclusive, or conflicting. The analysis of whether the evidence supported the
kidnapping counts returns to the argument Becker raised in his third issue. As we
discussed above, the evidence supporting the kidnappings was strong and conclusive.

The jury found that Becker killed Richardson while committing an inherently
dangerous felony. It would not matter whether the jury believed the killing was
intentional or merely reckless or even committed in attempting to protect himself. In
order to find the possibility that the jury might have convicted under a theory of
unintentional second-degree murder, this court would have to find that the jury
improperly convicted Becker under the three kidnapping counts. We refuse to make such
a finding.

20



The conviction is affirmed.

* * *

JOHNSON, J., concurring: I concur in the result, including the determination that it
was not clearly erroneous for the trial court to fail to give a lesser included offense
instruction on unintentional second-degree murder. I write separately to reiterate my
disagreement with the court-made special rule for lesser included instructions in felony-
murder cases. See State v. Jones, 287 Kan. 547, 558, 198 P.3d 756 (2008) (Johnson, J.,
concurring).