State v. Boyd

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No. 104,282

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

HERMAN KERWIN BOYD IV,
Appellant.


SYLLABUS BY THE COURT

1.
Should evidence be lacking to support an alternative means of committing a crime
submitted to the jury, a guilty verdict fails for insufficient evidence.

2.
A judgment of acquittal must be entered when a criminal conviction has been
successfully challenged for lack of evidence.

3.
Taking property from the person of the victim and taking property from the
presence of the victim do not constitute alternative means of committing aggravated
robbery.

4.
The serial terms in K.S.A. 21-3205(1) defining aiding and abetting do not create
alternative means of committing a crime.


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5.
Facing liability for a crime as an aider and abettor, on the one hand, creates an
alternative means to committing the same offense as a principal, on the other. The danger
to jury unanimity postulated in State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), that
exists when a jury has been instructed on alternative means of committing a particular
crime also exists if the jury has been given the options of convicting a defendant as an
aider and abettor or as a principal.

6.
K.S.A. 21-3205(2) imposes liability on a person committing a crime in league
with one or more associates for any other crimes those associates commit during the
perpetration of the planned offense, so long as the additional crimes may be considered
foreseeable consequences. That rule of liability does not depend upon or create
alternative means of committing a crime. Rather, the statute expands liability or
responsibility for an individual engaged in a criminal enterprise to include crimes other
participants may have committed in the course of carrying out that enterprise. The
individual need not have committed the crime itself to be liable for it.

Appeal from Johnson District Court; JOHN ANDERSON III; judge. Opinion filed December 23,
2011. Affirmed.

Lydia Krebs, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GREENE, C.J., ATCHESON, J., and BRAZIL, S.J.

ATCHESON, J.: A Johnson County jury convicted Herman Kerwin Boyd IV of
robbing a Sonic drive-in restaurant. Because Boyd held up the place with a cohort in
crime, he was charged with aggravated robbery and aggravated assault both as a principal
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and as an aider and abettor. The case was submitted to the jury that way, prompting Boyd
to burrow deep into the developing law of alternative means in hopes of finding an
escape route on appeal. He primarily argues that aiding and abetting, as a basis for
imposing criminal liability, amounts to an alternative means to acting as a principal. We
agree. But on the facts, Boyd loses. There is sufficient evidence to support his conviction
for aggravated robbery as both a principal and an aider and abettor. And because Boyd's
partner wielded a deadly weapon, the aggravated assault was foreseeable criminal
conduct during the course of the robbery, providing an independent ground to uphold that
conviction. We also consider and turn aside Boyd's additional alternative means
arguments and a challenge to his sentence.

FACTS AND PROCEDURAL HISTORY

During the evening of December 5, 2005, Boyd and Christopher Shivers went into
a Sonic restaurant in Shawnee, Kansas. They entered with robbery rather than burgers on
their minds. Shivers immediately fired a handgun and demanded the manager appear
front and center. Ryan Greene came to the front of the store where he joined fellow
employees Jennifer Thompson and Christina Osburn. Brandon Greene, Ryan's brother,
was working in the grill area and tried to sneak out the back when the commotion
erupted. Shivers intercepted him, and using the gun to emphasize the point that escape
wasn't acceptable behavior, he shepherded Ryan toward the front of the store.

Shivers then brandished the gun and demanded Ryan Greene turn over the money.
Ryan Greene opened the cash register. According to Thompson, Boyd then "pretty much
pushed [Ryan] out of the way" and took the money. Shivers told Ryan Greene to open the
safe. He complied. Thompson recalled Boyd urging Shivers to hurry up with the safe.
Boyd then grabbed a plastic container out of the safe.

Shivers demanded the paper money Thompson and Osburn had in their aprons.
Boyd, however, instructed Shivers to leave the coin changer Thompson carried, saying,
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"No, we don't need that." Thompson testified that Boyd actually took the money from
her. Boyd and Shivers then left the restaurant.

Security cameras captured much of the robbery and the images showed Boyd. The
police released surveillance photos to the media the next day, and a tipster called in to
identify Boyd. After the police arrested Boyd, he admitted being with Shivers at the
Sonic restaurant. The Johnson County district attorney charged Boyd with three counts of
aggravated robbery for taking property from Ryan Greene, Thompson, and Osburn and
one count of aggravated assault of Brandon Greene. At trial, Boyd testified in his own
defense. He told the jury he went into the Sonic restaurant with Shivers and helped in the
robbery because he was fearful that Shivers would have shot him had he refused. Boyd's
version, if the jury were to believe it, supported a defense of compulsion. See K.S.A. 21-
3209.

The trial judge instructed the jury that Boyd could be found guilty of the
aggravated robberies either as an aider and abettor or as a principal. The instruction
related to the robbery of Ryan Greene omitted a portion of the aiding and abetting
language. Nobody has complained about the omission on appeal, and we find it
immaterial to the disposition of the issues presented to us. The trial judge instructed the
jury on principal and aider and abettor liability on the aggravated assault count. The
instructions included an explanation of aider and abettor liability under K.S.A. 21-
3205(1). And they explained that a person committing a crime could be held liable for
any other foreseeable crime occurring during the course of that offense, as provided in
K.S.A. 21-3205(2). The trial judge instructed on Boyd's compulsion defense. On appeal,
Boyd lodges no complaint about the jury instructions.

The jurors apparently found the compulsion defense underwhelming. They
convicted Boyd of the aggravated robberies and the aggravated assault. Boyd's criminal
history placed him in the highest category on the sentencing grid. The trial judge
sentenced Boyd to 233 months in prison on the aggravated robbery of Ryan Greene,
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reflecting a standard sentence. He imposed sentences of 59 months in prison on the
remaining aggravated robbery convictions and 12 months in prison on the aggravated
assault conviction. All of those sentences were concurrent to the 233-month sentence.
Boyd has timely appealed.

ALTERNATIVE MEANS CHALLENGES

General Principles

In State v. Schreiner, No. 104,149, 46 Kan. App. 2d ___, ___ P.3d ___ (filed
November 4, 2011), slip op. at 7, this court recently laid out the ramifications of
submitting alternative means of committing a crime to a jury and the potentially seismic
consequences when the evidence fails to support one of those means. We stated:

"When a statute establishes alternative means of committing a crime, the State
must present evidence sufficient to support each means submitted to the jurors in the
instructions. All of the jurors must be convinced beyond a reasonable doubt the defendant
committed the offense. But the jurors need not agree on which of the alternative means
has been proven. State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010). A
general verdict of conviction is legally proper so long as the record contains sufficient
evidence to support each means. See Wright, 290 Kan. 194, Syl. ¶ 2; State v. Stevens, 285
Kan. 307, 316, 172 P.3d 570 (2007). Should evidence be lacking on one of the means,
however, then a guilty verdict fails for insufficient evidence even though there may be
overwhelming evidence supporting the other means. See Wright, 290 Kan. at 204-06."
Schreiner, slip op. at 7.


Although Wright expressly defined the error in allowing jurors to consider a means of
committing a crime without adequate factual support as one of insufficient evidence, the
court in that case found enough evidence for each means and, therefore, affirmed the
jury's guilty verdict. The court declined to expound upon the appropriate remedy. The
Kansas appellate courts, however, have consistently recognized that a judgment of
acquittal must be entered when a criminal conviction has been successfully challenged
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for lack of evidence. State v. Scott, 285 Kan. 366, Syl. ¶ 2, 171 P.3d 639 (2007); State v.
Hollins, 9 Kan. App. 2d 487, 489-90, 681 P.2d 687 (1984). The United States Supreme
Court has pointed out that a constitutional double jeopardy bar would preclude a retrial
when a conviction has been reversed for insufficient evidence. United States v. Burke,
437 U.S. 1, 11, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). We presume that to be the
appropriate remedy absent any direction otherwise from the Kansas Supreme Court.
Schreiner, slip op. at 7.

In considering Boyd's alternative means challenges, we view the evidence in a
light most favorable to the State as the party prevailing at trial. An appellate court neither
reweighs the evidence generally nor credits witness testimony contrary to the verdicts.
See State v. Trautloff, 289 Kan. 793, 800-01, 217 P.3d 15 (2009); State v. Pham, 281
Kan. 1227, 1252, 136 P.3d 919 (2006). After taking the evidence that way, the court
typically reviews the relevant statutory language to determine if it creates alternative
means of committing a given crime. That poses a question of law over which the
appellate court exercises unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d
780 (2010). In Schreiner, slip op., Syl. ¶ 1, this court offered a general description of
alternative means offenses:

"Alternative means essentially entail materially different ways of committing a
particular crime based on the statutory definition or elements of the offense. When
criminal statutes create two or more distinct ways of committing an offense, those ways
reflect alternative means. Other criminal statutes establish only one way to commit an
offense, although they may use synonymous or redundant terms to define the prohibited
conduct. Such statutes do not set forth alternative means."


With those precepts, we turn to the particular alternative means challenges Boyd asserts
on appeal.

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Aggravated Robbery

First, Boyd says the aggravated robbery statute creates alternative means of
committing that offense by defining the crime as "taking property from the person or the
presence of another" using force or threat of bodily harm when the perpetrator has a
deadly weapon or actually inflicts bodily harm on someone. K.S.A. 21-3427. In this case,
the jury was instructed on each of the aggravated robbery counts that the State had to
prove property was taken "from the person or the presence" of the particular victim. Boyd
contends the description of the taking creates two distinct means of carrying out an
aggravated robbery.

We disagree. The essence of the crime is forcibly taking property when a person is
present. The term "from the person or the presence" of the victim describes the proximity
of the property and the individual. It does so with phraseology that overlaps. Taking
property from the presence of the victim (who need not be the owner of whatever the
perpetrator seizes) describes an area in the general vicinity of the victim. Taking property
from the person of the victim refers to the immediate environs of the body such as a
pocket, a purse, or the hands. Thus, a taking "from the person" is actually encompassed
within a taking "from the presence" of the victim. The robbery and aggravated robbery
statutes would criminalize the same range of conduct even if the phrase "the person" had
been omitted from the definitions of those crimes. Accordingly, taking property from the
person of the victim and taking property from the presence of the victim do not constitute
alternative means of committing aggravated robbery.

For purposes of determining the existence of alternative means, we consider the
"taking" language of the robbery and aggravated robbery statutes to be comparable to the
definition of sexual intercourse this court analyzed in Schreiner. Under the Kansas
Criminal Code, "sexual intercourse" has been defined in K.S.A. 21-3501(1) as "any
penetration of the female sex organ by a finger, the male sex organ or any object." The
Schreiner court held "any object" to be an umbrella term including the anatomical parts
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identified in the definition and, thus, rejected an alternative means challenge to a rape
conviction on the theory that penetration by each of the instrumentalities created an
alternative means of committing the crime. Schreiner, slip op. at 8-9. Taking property
from the presence of the victim is a comparable umbrella term covering taking property
from the person of the victim. The Schreiner court recognized some degree of
redundancy may be tolerated in criminal statutes to enhance the objective of giving fair
notice of the proscribed conduct. Schreiner, slip op. at 10. The challenged language of the
robbery statutes reflects another example of that principle.

Historically, robbery was an aggravated form of the common-law crime of larceny
rooted in the taking of another's property. See State v. Boyd, 281 Kan. 70, 94, 127 P.3d
998 (2006) (Theft reflects a lesser degree of the generic crime of larceny, while robbery
presents an enhanced form of the crime.); State v. Long, 234 Kan. 580, 591-92, 675 P.2d
832 (1984), disapproved in part on other grounds State v. Keeler, 238 Kan. 356, 710
P.2d 1279 (1989) (detailed discussion of the common-law ancestry of robbery and theft).
Robbery entailed obtaining the property from the individual by a direct threat or
application of force. The crime created a volatile, potentially deadly confrontation. Thus,
the English highwayman's demand to the unfortunate traveler, "Stand and deliver—your
money or your life." See "Highwayman," Wikipedia.org/wicki/Highwayman (2011). The
danger remained the same whether the property came from the traveler's purse or the
inside of a coach. In contrast, theft—another form of larceny—entailed no such danger to
the victim. The thief worked by stealth and secured the victim's property without his or
her knowledge. Long, 234 Kan. at 591-92. The distinction between robbery and theft
carries over to modern criminal codes. Kansas, therefore, treats robbery as a crime
against persons and punishes it far more harshly than theft, a crime against property,
precisely because the commission of the offense almost invariably creates circumstances
fraught with physical peril for the victim. The legislature's use of the phrasing "taking
property from the person or the presence of another" merely serves to criminalize the
peril associated with the crimes of robbery and aggravated robbery. We reject Boyd's
argument that alternative means lurk somewhere beneath that statutory language.
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Aiding and Abetting

Boyd next argues that the statute defining and proscribing aiding and abetting,
K.S.A. 21-3205(1), creates alternative means of imposing criminal liability. This court
recently rejected that construction of the aiding and abetting statute. State v. Johnson, 46
Kan. App. 2d ___, Syl. ¶ 9, ___ P.3d ___ (2011). The statute, in pertinent part, provides: "A
person is criminally responsible for a crime committed by another person if such person
intentionally aids, abets, advises, hires, counsels, or procures the other to commit the
crime." K.S.A. 21-3205(1). In this case, the district court instructed the jury using all of
those terms in K.S.A. 21-3205(1), save hiring. In short, the statute imposes criminal
liability on someone who induces or helps another person to commit a crime. See Black's
Law Dictionary 81 (9th ed. 2009) (Aiding and abetting means "to assist or facilitate the
commission of a crime, or to promote its accomplishment."). Aiding and abetting, then,
are umbrella words broadly covering the additional terms in K.S.A. 21-3205(1), which
are simply more specific forms of facilitating or promoting criminal activity. The
Johnson decision so holds and correctly finds the serial terms in K.S.A. 21-3205(1) do
not create alternative means of committing a crime. Johnson, slip op. at 17-18. We find
the reasoning of Johnson persuasive and dispositive of Boyd's challenge.

Liability as Aider and Abettor or as Principal

Finally, Boyd argues that facing liability for a crime as an aider and abettor, on the
one hand, creates an alternative means to committing the same offense as a principal, on
the other. That position has analytic merit, given how the Kansas courts have thus far
described alternative means. As outlined in Schreiner, for example, alternative means
derive from materially different ways of committing a crime. Schreiner, slip op., Syl. ¶ 1.
In considering aiding and abetting, as defined in K.S.A. 21-3205(1), that description
might be rephrased more broadly as markedly different ways of facing criminal liability
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for participating in specific wrongful conduct. We think the actions of an aider and
abettor may be sufficiently distinct from the actions of a principal to establish an
alternative means of committing a crime. An example illustrates the point. A person may
be guilty of murder as an aider and abettor for hiring the actual killer or whisking the
perpetrator away from the scene of the shooting. Those actions are measurably different
from the principal's physical conduct in taking a life. Indeed, the instigator of a murder-
for-hire typically remains far removed from the scene of the crime. Societal norms,
however, treat the aider and abettor and the principal with moral and legal equivalence
notwithstanding the gulf that may separate their respective actions. By enacting K.S.A.
21-3205(1), the legislature confirmed those norms: promoting or assisting in a crime is
just as deserving of opprobrium and punishment as the direct commission of the offense.
But the gulf in conduct resulting in criminal liability sufficiently establishes aiding and
abetting—the promotion of or assistance in carrying out a specific crime—as an
alternative means to liability as the principal.

Aider and abettor liability applies to pretty much every substantive criminal
offense. It is not, therefore, a distinct means of committing one particular crime but a
means common to all. But that really does not distinguish aiding and abetting in a
meaningful way from other alternative means. Given the perceived ill outlined in Wright,
we conclude aiding and abetting described in K.S.A. 21-3205(1) must be recognized as
an alternative means. The court in Wright expressed concern that instructing a jury on an
alternative means for which little or no evidence had been presented might prompt some
jurors to vote to convict on that basis, thereby offending statutory requirements for a
unanimous verdict. Wright, 290 Kan. at 205-06. The deficiency is not subject to harmless
error review and requires relief regardless of the strength of the evidence to support the
other means submitted to the jury. 290 Kan. at 205-06.

The same considerations come into play when jurors have been instructed they
may convict a defendant as a principal or as an aider and abettor. For unanimity
purposes—the concern in Wright—the jury really has three options: (1) convict as an
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aider and abettor; (2) convict as a principal; or (3) acquit. The fear expressed in Wright is
that some jurors might choose to convict on a means or ground for which there is no
evidence. According to Wright, a verdict that could rest, at least in part, on such a lack of
evidence offends a criminal defendant's statutory right to a unanimous decision of all
jurors on the question of guilt. 290 Kan. at 205-06. In turn, implicit in Wright is the
assumption that at least some of the jurors who might favor convicting a defendant based
on the unsupported alternative means would migrate to acquittal if that means were not
an option. That is, those jurors might opt to vote not guilty rather than for convicting on a
means of committing the crime supported in the evidence. The result then could be a
deadlocked jury. But if the assumption were that all of those jurors would migrate to
convicting based on the remaining means supported in the evidence, the error in
submitting a means without evidentiary support could not improperly deprive the
defendant of a unanimous verdict. In short, the danger postulated in Wright that exists
when a jury has been instructed on alternative means of committing a particular crime
also exists if the jury has been given the options of convicting a defendant as an aider and
abettor or as a principal.

We turn to the application of Wright's alternative means considerations to the facts
of this case. As to the three aggravated robbery counts, the evidence taken most favorably
to the State supports Boyd's criminal liability as both an aider and abettor and as a
principal. Boyd physically took money from the restaurant's cash drawer and property
from the safe. In doing so, he pushed around Ryan Greene, the manager. Those are
actions of a principal. He also told Shivers that they didn't want the coin changer from
Thompson. And he directed Shivers to hurry up in opening the safe. Those are actions of
an aider and abettor. In legally comparable circumstances, the Kansas Supreme Court
found sufficient evidence to support the conviction of a defendant as both an aider and
abettor and as a principal when he actively participated with two confederates in the
kidnapping and assault of several individuals. State v. Becker, 290 Kan. 842, 852-53, 235
P.3d 424 (2010). We, therefore, affirm the aggravated robbery convictions.

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The aggravated assault count presents a more intricate alternative means issue and
requires a more extended analysis of statutory aider and abettor liability. We ultimately
conclude on the facts here, where the aggravated assault occurred during the course of an
aggravated robbery, Boyd's conviction may be upheld independent of any alternative
means considerations. The result derives from a wholly separate legal theory of aider and
abettor liability codified in K.S.A. 21-3205(2). Under that provision, an aider and abettor
stands liable for "any other crime committed in pursuance of the intended crime if
reasonably foreseeable by such person as a probable consequence of committing or
attempting to commit the crime intended." K.S.A. 21-3205(2). That principle of criminal
liability suffices to impute the aggravated assault to Boyd. The trial court here instructed
the jury on aider and abettor liability under both K.S.A. 21-3205(1) and K.S.A. 21-
3205(2).

The undisputed evidence shows that Shivers wielded the handgun and pointed it at
Brandon Greene. Boyd brandished no weapon during the course of the robbery. Looking
at the aggravated assault alone, Boyd's liability as a principal or as an aider and abettor
promoting or assisting in the offense presents a problematic alternative means issue.

To illustrate, assume the only charge in this case were an aggravated assault. Boyd
and Shivers walk up to an individual. Boyd says, "That's the guy. Do it." Shivers pulls out
the handgun, points it at the individual, and says to him, "You're a dead man." He pauses.
Boyd and Shivers then walk away. Boyd goes to trial, and that case is submitted to the
jury on an aiding and abetting theory and on a principal liability theory. In the
illustration, there is no evidence to support principal liability on Boyd's part, but more
than enough for aiding and abetting. Under Wright, however, that would be insufficient to
sustain a conviction, since no evidence would support one of the means submitted to the
jury.

The circumstances of the aggravated assault in this case do not vary materially
from the illustration for alternative means purposes. So if the aggravated assault were the
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only crime charged, we would be constrained to reverse the conviction based on
insufficient evidence to support Boyd's liability as a principal.

But K.S.A. 21-3205(2) imposes liability on a person committing a crime in league
with one or more associates for any other crimes those associates commit during the
perpetration of the planned offense, so long as the additional crimes may be considered
foreseeable consequences. That rule of liability does not depend upon or create
alternative means of committing a crime. Rather, the statute expands liability or
responsibility for an individual engaged in a criminal enterprise to include crimes other
participants may have committed in the course of carrying out that enterprise. The
individual need not have committed the crime itself to be liable for it. Thus, liability
under K.S.A. 21-3205(2) has nothing to do with alternative means of committing a crime.

The jury was properly instructed that Boyd could be found guilty of any crime
committed in the course of the aggravated robbery if that crime might be reasonably
foreseeable in carrying out the robbery. Shivers' aggravated assault of the restaurant
employee was a plainly predictable part of the robbery. Boyd knew full well before the
two entered the Sonic restaurant that Shivers had a handgun. Recall that Boyd's
unsuccessful defense was based on compulsion—he claimed he participated in the
robbery only because Shivers threatened him with the gun. And a robber reasonably
might expect his armed accomplice to use the gun to add potency to directions given the
victims. That, of course, amounts to an aggravated assault.

In those circumstances, the law says Boyd may be convicted of an aggravated
assault even though he didn't have the gun and didn't personally threaten anyone. That
has nothing to do with alternative means of committing an aggravated assault and
everything to do with imposing liability on those who confederate to commit a crime for
any additional crimes reasonably undertaken in furtherance of that confederation. The
Kansas Supreme Court has stated the principle underlying K.S.A. 21-3205(2) this way:
"All participants in a crime are equally guilty of that crime and any other reasonably
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foreseeable crime committed in carrying out the intended crime." State v. Griffin, 279
Kan. 634, Syl. ¶ 10, 112 P.3d 862 (2005). Because Boyd has been properly convicted of
aggravated robbery, the aggravated assault Shivers committed during the course of the
robbery likewise may be imputed to him even though he did not promote, assist in, or
carry out the aggravated assault by any means whatsoever. We, therefore, affirm Boyd's
conviction for aggravated assault.

SENTENCING

Boyd argues that the trial court's use of his past convictions in determining an
appropriate sentence impairs his constitutional rights because the fact of those
convictions was not determined beyond a reasonable doubt by the jury. Boyd relies on
the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000), to support that proposition. He also acknowledges
the Kansas Supreme Court has rejected that argument and has found the State's current
sentencing regimen conforms to the Sixth and Fourteenth Amendments to the United
States Constitution with respect to the use of a defendant's past convictions in
determining a presumptive statutory punishment. State v. Fischer, 288 Kan. 470, Syl. ¶ 4,
203 P.3d 1269 (2009); State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). The trial
court imposed the standard presumptive sentence on Boyd, given his criminal history.
We, therefore, decline Boyd's invitation to find a sentencing error.

Affirmed.