State v. Braun

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No. 103,560

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CONRAD J. BRAUN,
Appellant.


SYLLABUS BY THE COURT

Under K.S.A. 21-3428, which defined the crime blackmail in Kansas until July 1,
2011, the statute required either that the perpetrator (1) gain or attempt to gain something
of value or (2) compel another person to act against the person's will. If nothing of
monetary value was at stake, then the crime's victim must actually be compelled to take
some action for the crime to constitute blackmail.

Appeal from Johnson District Court; STEPHEN R. TATUM, judge. Opinion filed March 30, 2012.
Reversed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

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

Before MCANANY, P.J., LEBEN and ATCHESON, JJ.

LEBEN, J.: Conrad Braun appeals his blackmail conviction, claiming that the
evidence was insufficient to convict him of blackmailing his ex-wife's husband. At the
time Braun was charged, blackmail was defined by statute as "compelling another to act
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against such person's will." Braun notes that the alleged victim, Tucker Kirk, didn't
actually take any action that Braun asked Kirk to take—neither refraining from contact
with Braun's children nor signing a contract Braun had prepared—in the communications
that led to the blackmail charge.

Braun's point is well taken. The statute defined blackmail as compelling another to
act, not attempting to do so. Since Kirk didn't act in response to Braun's communication,
the State did not present sufficient evidence of blackmail, and Braun's conviction must be
reversed.

The issue before us is primarily one of statutory interpretation, over which we
exercise unlimited review. Thus, we give no specific deference to the district court's
interpretation of the statute. State v. Finch, 291 Kan. 665, Syl. ¶ 2, 244 P.3d 673 (2011).
Our goal is to determine the legislature's intent through the statute's language, which is
generally done by giving ordinary words their ordinary meaning. Finch, 291 Kan. 665,
Syl. ¶ 2.

A special rule, the rule of lenity, guides us when determining the meaning of an
ambiguous criminal statute. When there is a reasonable doubt about the statute's meaning,
we apply the rule of lenity and give the statute a narrow construction. State v. Chavez,
292 Kan. 464, 468, 254 P.3d 539 (2011); State v. Reese, 42 Kan. App. 2d 388, 390, 212
P.3d 260 (2009).

Two important policies are served by the rule of lenity. First, people should have
fair notice of conduct that is criminal. Reese, 42 Kan. App. 2d at 390. Second, narrow
interpretation when there is some reasonable doubt about a criminal statute's meaning
best respects the legislature's role in defining what constitutes a crime. Kansas has no
common-law crimes, K.S.A. 21-3102(1), so something is a crime only if the legislature
says so by statute. If the courts broadly interpreted ambiguous criminal statutes, we might
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inadvertently overstep our role and make something criminal even though the legislature
had not intended that result. See State v. Knight, 44 Kan. App. 2d 666, 681, 241 P.3d 120
(2010), rev. denied 292 Kan. 967 (2011).

So with these rules in mind, let's look at the Kansas blackmail statute as it existed
when Braun is alleged to have committed this crime: K.S.A. 21-3428. We have added
some bracketed numbers to show the statute's structure. K.S.A. 21-3428 provides:
"Blackmail is [1] gaining or attempting to gain anything of value or [2] compelling
another to act against such person's will, by threatening to communicate accusations or
statements about any person that would subject such person or any other person to public
ridicule, contempt or degradation." (Emphasis added.)

The statute's structure makes it a requirement in all cases that the perpetrator
threaten to communicate something about another person that would publicly harm the
person. In addition, the perpetrator must also either "gain[] or attempt[] to gain anything
of value" or "compel[] another to act against such person's will." The State did not claim
Braun sought to gain anything of value in this case, so the legal question before us comes
down to whether Braun "compel[led] another to act against such person's will." The State
agrees that there was no evidence that the alleged victim took any action that Braun
sought to compel him to take.

The State does cite some definitions that suggest "compel" can mean the exertion
of strong force without explicit reference to a necessary reaction. The third definition
provided by the American Heritage Dictionary is "[t]o exert a strong irresistible force on;
sway." American Heritage Dictionary 376 (4th ed. 2006). The State also cites a definition
from an earlier edition of Black's Law Dictionary, which defined compel as "[t]o urge
forcefully; under extreme pressure." Black's Law Dictionary 282 (6th ed. 1990). But the
Black's entry cited by the State also noted that "the hallmark of compulsion is the
presence of some operative force producing an involuntary response." And the first
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definition in the Oxford American Dictionary is "to use force or influence to cause (a
person) to do something, to allow no choice of action." Oxford American Dictionary 128
(1980).

We do not find this a case that can—or should—be determined through a
dictionary debate. Instead, our conclusion is based on two key points. First, the way the
legislature constructed the statute strongly suggests that the crime victim must take some
action in response to the blackmailer's communication. Second, in looking at the statute
from the State's perspective, there is at most an ambiguity about whether the victim must
act, making this a proper situation to invoke the rule of lenity.

Let's return, then, to the statute's structure. The crime requires one of two things:
(1) gaining or attempting to gain anything of value or (2) compelling another to act
against such person's will. The legislature specifically provided that either actually
gaining something of value or merely attempting to do so would qualify, but the
legislature did not include "attempting to compel" language with respect to the
requirement that someone act against his or her will. In addition, the triggering phrase is
compelling another to act against his or her will. This too emphasizes that action is a part
of this element of the crime of blackmail.

We apply the rule of lenity when there is reasonable doubt about statutory
meaning, and although the State can cite some definitions to support its case, usage of the
word "compel" usually sends a stronger message than the State urges here. Lexicographer
Bryan Garner compares the standard usage of the words compel and impel, noting that
compel "is the stronger word, connoting force or coercion, with little or no volition on the
part of the [person] compelled." Garner's Modern American Usage 172 (3d ed. 2009).
When we combine the normal usage of compel with the structure of this statute
("compelling another to act against such person's will"), there is at least an ambiguity
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about whether the victim must be compelled to take action, squarely making the rule of
lenity applicable.

We note that the legislature recently amended the blackmail statute to prohibit
"compelling or attempting to compel another to act against such person's will." See
K.S.A. 2011 Supp. 21-5428 (effective July 1, 2011). That amendment was part of an
overall recodification of the Kansas Criminal Code. We do not suggest that changes made
by the 2010 legislature provide specific guidance in how to interpret a statute passed
many years earlier. But the change is perhaps noteworthy as an example of how easily the
legislature could have indicated its agreement with the interpretation urged by the State in
Braun's case.

In 2003, when the State alleges Braun committed his crime, the statute required
that the actor "compel[] another to act against such person's will." Because Kirk took no
action, Braun did not commit the crime of blackmail as it was then defined by law. Braun
asks that his conviction be reversed because the evidence wasn't sufficient to convict him
of blackmail. Even when we view the evidence in the light most favorable to the State, as
we are required to do when considering whether the evidence was sufficient to convict,
there was no evidence that the alleged victim took any action and thus there was
insufficient evidence to convict Braun for blackmail. See State v. Everest, 45 Kan. App.
2d 923, 929-30, 256 P.3d 890 (2011) (holding that conviction must be reversed when
evidence considered in light most favorable to State does not prove the crime), rev.
denied 293 Kan. ___ (January 20, 2012).

The State suggested in its brief that we should treat the error here as a jury-
instruction error and send the case back for retrial in which a correct definition of
blackmail could be given to the jury. But the State chose to prosecute Braun for
blackmail, not for attempted blackmail, and the State did not present evidence of
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blackmail to the jury. The State is not entitled to try Braun a second time on a new
theory, i.e., that he only committed an attempted blackmail.

The judgment of the district court is reversed.