No. 89,620
IN THE SUPREME COURT OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ANDREW JACKSON,
Appellant.
SYLLABUS BY THE COURT
Under the facts and circumstances in this case as fully set forth in the record on appeal, it is held: (1) Kansas has jurisdiction over all of the crimes charged under the provisions of K.S.A. 21-3104; (2) the defendant was not denied his right to a speedy trial as required by K.S.A. 22-3401; (3) the jury was properly instructed for the reasons fully set forth in the opinion; (4) the trial court correctly admitted photographs necessary to sustain the State's burden of proof, the complained of hearsay statement was correctly admitted, and the defendant's confession was correctly determined to be voluntarily made after considering the totality of the circumstances and was admissible; (5) there were no cumulative errors, (6) the evidence to sustain all these convictions was sufficient viewed in the light most favorable to the State and this court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt; (7) the hard 50 sentencing scheme is not unconstitutional; (8) there was sufficient evidence to support the hard 50 sentence; and (9) the defendant's convictions and sentences are affirmed.
Appeal from Wyandotte district court; JOHN J. McNALLY, judge. Opinion filed September 9, 2005. Affirmed.
Sandra M. Carr, assistant appellate defender, argued the cause and was on the briefs for appellant.
Sheryl L. Lidtke, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
LARSON, J.: This is Andrew Jackson's direct appeal of his jury convictions of first-degree premeditated murder, kidnapping, and conspiracy to commit murder.
Numerous trial errors which we will separately consider are alleged. We first set forth the sad facts and proceedings giving rise to this appeal.
Jackson met Bovi Combs and Shecora Clanton while riding buses in Kansas City, Missouri. Their chance meeting resulted in the murder of Delesha Williams, a woman Combs met at a bus stop in Kansas City, Missouri.
Combs wanted to kill Williams because he believed she was involved in his sister's death. Clanton, who was Combs' girlfriend, agreed to help. They planned to steal items from Williams' house after the murder. Combs and Clanton initially planned to poison Williams with strychnine but were unable to make such a purchase over the counter.
Clanton rented a U-Haul truck to carry the stolen property from Williams' house. After picking up the truck, Combs and Clanton returned to Clanton's house, where Combs called Jackson and inquired as to how Jackson would kill someone. Combs then paged Williams several times and waited at Clanton's house until 9:30 p.m., when Williams returned Combs' page.
Combs and Clanton then drove to Jackson's apartment to pick him up. When Combs and Clanton arrived, Jackson produced a syringe and a white chemical substance he had prepared for them. Jackson told them to stick Williams with the syringe and she would die. Although Jackson initially refused to go with Combs and Clanton because he thought they had waited until too late at night, he changed his mind and accompanied Combs and Clanton to Williams' house in Kansas City, Missouri.
As the trio was pulling up to Williams' house, they noticed a car in the driveway with its lights on. They drove past the house a couple of blocks before turning around and coming back. When they returned, the car was gone. Clanton parked the U-Haul truck, and Combs knocked on Williams' door. While Combs was at the front door, Williams' cousin walked up to the door. He had been in a minor car accident and needed a ride home. Williams opened the door for Combs and her cousin. Combs returned to the U-Haul truck a few minutes later with Williams' cousin and told Clanton and Jackson to drive Williams' cousin home.
After taking Williams' cousin home, Clanton and Jackson joined Combs and Williams at Williams' house. Williams did not have anything for them to drink, so Jackson walked to a nearby convenience store and purchased soda and cigarettes. After visiting with Combs, Clanton, and Jackson for awhile, Williams decided to go to bed. She invited the trio to spend the night at her house.
Combs, Clanton, and Jackson waited for Williams to fall asleep so they could inject her with the chemical in Jackson's syringe. When Williams was asleep, Jackson hit Williams with a mallet and then jumped on top of her and started strangling her. Williams struggled with Jackson. The two fell off the bed and continued fighting on the floor. Jackson eventually subdued Williams and told Combs to get the syringe from his coat pocket. However, Jackson broke the syringe before he could inject Williams.
Without a syringe to poison Williams, Combs suggested that Jackson strangle her. Combs found an extension cord and gave it to Jackson. Jackson broke the extension cord before he could strangle Williams, so he asked Combs for another one. Before Combs could find another extension cord, Jackson told Combs that he was tired of struggling with Williams. Combs suggested that Jackson stab Williams, but Jackson told Combs that if he wanted Williams dead, he would have to do it himself.
Combs took a knife and began slashing and stabbing Williams until he bent the knife. While Combs went to the kitchen to get another knife, Williams managed to crawl out of her bedroom into the hallway. Combs slashed at Williams again and kicked her in the face and the stomach. Williams appeared to be unconscious, lying in a puddle of blood in the hallway. She had multiple injuries to her head, neck, and shoulders caused by blunt force impacts, the attempted strangulation, and the stabbings and slashes with the knife.
Because Combs wanted to have all Williams' things loaded into the U-Haul before Williams' mother returned home from work, they left Williams lying in the hallway and began loading things into the U-Haul truck. They took a big screen television (TV), two smaller TV's, a videocassette recorder, and several telephones. Before leaving, they loaded Williams into the back of the U-Haul truck. Jackson told police that Williams walked to the back of the U-Haul truck and Combs threw her in.
Clanton drove Jackson back to his apartment in Kansas City, Missouri, where he got into the back of the U-Haul and retrieved a small television to take with him. Jackson told Combs to never call again and "you never heard of me." Combs and Clanton then drove to a store and purchased a padlock for the back of the U-Haul truck before driving back to Clanton's house in Kansas City, Missouri. After staying at Clanton's house for about 30 minutes, Combs and Clanton left in the U-Haul truck to deliver the big screen TV to Combs' uncle. While they were driving, Clanton heard Williams' screams from the back of the U-Haul. Combs suggested that Clanton find a wooded area to dump Williams' body, so Clanton drove to a wooded area near Washington High School in Kansas City, Kansas. At this point, Combs threw Williams from the truck, hit her with a large log, drove back and forth over her upper torso several times, and threw her body into the woods.
Combs and Clanton were arrested a few hours later, and both gave statements to the police implicating Jackson. Jackson turned himself in to Kansas City, Missouri, police a few days later. Clanton testified extensively at Jackson's trial. A jury convicted Jackson of first-degree premeditated murder, kidnapping, and conspiracy to commit murder. The district court sentenced Jackson to a hard 50 life sentence.
Jackson appeals his convictions and his sentence directly to this court pursuant to K.S.A. 22-3601, raising a number of issues. He first claims that Kansas does not have jurisdiction to prosecute him. If we conclude that Kansas has jurisdiction, Jackson contends his statutory right to a speedy trial was violated; the trial court failed to properly instruct the jury; the trial court erroneously admitted evidence, including gruesome photographs, hearsay statements, and his involuntary confession; he did not receive a fair trial because of cumulative errors; and, finally, his convictions are not supported by sufficient evidence. If we affirm Jackson's convictions, he argues the hard 50 sentencing scheme is unconstitutional or, in the alternative, that his hard 50 sentence is not supported by sufficient evidence.
JURISDICTION
Jackson claims that Kansas does not have subject matter jurisdiction over the charged offenses because he never entered the state of Kansas or committed any act within Kansas. An appellate court reviews a question of subject matter jurisdiction using a de novo standard. State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003).
Subject matter jurisdiction for crimes in Kansas is controlled by K.S.A. 21-3104, which provides in pertinent part:
"(1) A person is subject to prosecution and punishment under the law of this state if:
(a) He commits a crime wholly or partly within this state; or
(b) Being outside the state, he counsels, aids, abets, or conspires with another to commit a crime within this state; or
(c) Being outside the state, he commits an act which constitutes an attempt to commit a crime within this state.
"(2) An offense is committed partly within this state if either an act which is a constituent and material element of the offense, or the proximate result of such act, occurs within the state. If the body of a homicide victim is found within this state, the death is presumed to have occurred within the state."
Although K.S.A. 21-3104 has been interpreted broadly, State v. Grissom, 251 Kan. 851, 889, 840 P.2d 1142 (1992), this court has recognized limits to its application. See State v. Palermo, 224 Kan. 275, 277, 579 P.2d 718 (1978). In Palermo, the State sought review of the district court's decision to set aside the verdict and acquit the defendant on a charge of selling heroin. Palermo sold the drugs to a person in Missouri, who then sold the drugs to an informant in Kansas. Because Palermo did not come into Kansas and did not personally participate in the drug sale in Kansas, he was tried under an aiding and abetting theory. The Palermo court affirmed the district court's dismissal, holding that Kansas cannot assert jurisdiction over a crime under an aiding and abetting theory if the defendant never entered Kansas and could not reasonably foresee that his or her act would cause, aid, or abet the commission of a crime in Kansas. 224 Kan. at 277.
Relying on Palermo, Jackson argues it was not reasonably foreseeable that Combs and Clanton would take Williams to Kansas and kill her. He argues that his participation in the events leading up to Williams' death ended hours before Combs and Clanton drove to Kansas, killed Williams, and dumped her body. Because he was not involved in any of the last-minute decisions, he contends he could not have known that Combs and Clanton would murder Williams and could not have aided and abetted in Williams' murder and kidnapping in Kansas. To analyze this argument, we must look at each charge individually to determine whether Combs' and Clanton's actions were reasonably foreseeable to Jackson.
Regardless of whether Jackson was involved in the last-minute decision making, it was certainly reasonably foreseeable that Combs and Clanton would finish the murder that Jackson helped start. Before they left the house, Jackson became weary of struggling with Williams and told Combs that if he wanted Williams dead, he could do it himself. Jackson told police that Williams walked to the back of the truck and Combs threw her in, indicating that Jackson knew Williams was alive in the back of the U-Haul when he got out at his apartment in Kansas City, Missouri. Jackson would have seen Williams in the back of the U-Haul truck when he retrieved a TV from it before he went into his apartment. Moreover, it was reasonably foreseeable that the beating, stabbing, and strangulation inflicted on Williams would disable her, making it easier for Combs and Clanton to finish the murder in some manner. Jackson's refusal to participate in the final decision making or the final acts that ended Williams' life does not relieve him of responsibility because he knew or should have known that Williams would not survive.
Under the same reasoning, Williams' kidnapping was foreseeable and, in fact, was already occurring. Jackson knew that Combs and Clanton had Williams in the back of the U-Haul. It was foreseeable that Combs and Clanton would continue to confine Williams in the U-Haul until they could complete her murder. Jackson knew that Combs planned to get a padlock for the back of the U-Haul and told police about it during his interrogation. Jackson made no attempt to rescue Williams from the U-Haul truck or to prevent her impending death. He did not offer to take Williams with him when he got out of the U-Haul. He did not encourage Combs and Clanton to let Williams go, and he did not call the police to alert them to Williams' presence in the back of the U-Haul truck. Instead, Jackson told Combs to get rid of his telephone number, not to call him anymore, and to forget he ever knew Jackson.
Even though it was reasonably foreseeable that Combs and Clanton would continue the kidnapping of Williams and complete the murder that Jackson had started, Jackson argues that it was not reasonably foreseeable that they would perform these acts in Kansas. This argument, however, overlooks Jackson's close proximity to Kansas and the mobility of the U-Haul truck. Jackson's apartment, Clanton's house, and Williams' house are all within 5 miles of the Kansas border. Clanton could easily drive the U-Haul truck 5 miles into Kansas to finish what the trio had started. The fact Jackson was not involved in the decision to go to Kansas does not make the trip unforeseeable.
The State prosecuted Jackson under an aiding and abetting theory for the crimes of first-degree premeditated murder and kidnapping. "Any person who counsels, aids, or abets in the commission of any offense may be charged, tried, convicted, and sentenced in the same manner as if he or she were a principal. [Citation omitted.]" State v. Wakefield, 267 Kan. 116, 142, 977 P.2d 941 (1999). Because it was reasonably foreseeable that Combs and Clanton would continue to confine Williams and drive to Kansas to complete the murder, the State has jurisdiction to prosecute Jackson for the crimes of first-degree premeditated murder and kidnapping under an aiding and abetting theory even though Jackson never personally entered Kansas.
Although the foreseeability analysis applies to the first-degree murder and kidnapping charges, it does not apply to the conspiracy charge. A conspiracy may be prosecuted in any jurisdiction where an overt act in furtherance of the conspiracy occurred, regardless of whether the defendant actually entered the state or district of trial. State v. Campbell, 217 Kan. 756, 779, 539 P.2d 329, cert. denied 423 U.S. 1017 (1975). The defendants in Campbell contended they could not be charged with conspiracy in Shawnee County because neither the agreement nor any overt act in which they participated was alleged to have been committed there. The court noted the indictment alleged the conspiratorial agreement occurred in Shawnee County and 10 of the separately numbered overt acts occurred there. The Campbell court said: "It is immaterial that the particular complainants may never have entered Shawnee county during the existence of the conspiracy." 217 Kan. at 779. The Campbell court relied on Downing v. United States, 348 F.2d 594, 598 (5th Cir.), cert. denied 382 U.S. 901 (1965), and its holding that "'[a] conspiracy may be prosecuted in the district where it was formed or in any district in which an overt act was committed in furtherance of its objects.'" 217 Kan. at 779. The Campbell decision further relied on K.S.A. 21-3104.
In our case, the actual killing was an overt act in furtherance of the conspiracy to commit murder. Kansas clearly has jurisdiction to prosecute Jackson for conspiracy to commit murder because an overt act in furtherance of the conspiracy occurred in Kansas.
We hold that the State properly exercised its jurisdiction in prosecuting Jackson for the crimes of first-degree premeditated murder, kidnapping, and conspiracy to commit murder. We proceed to the other trial issues Jackson raises.
SPEEDY TRIAL
Jackson was arraigned on October 10, 2001, and his trial was originally set for January 7, 2002, 89 days after his arraignment. Jackson was held in custody solely for trial on these charges, so the State had 90 days after arraignment to bring him to trial. See K.S.A. 22-3402(1). However, after continuances for the court's calendar and the availability of evidence, Jackson's trial date was continued until May 1, 2002. Jackson claims that his trial did not comply with the speedy trial requirements of K.S.A. 22-3402(1).
Jackson raises two arguments in support of this claim. First, he argues the trial court improperly granted two 30-day continuances due to congestion in the court's calendar. Second, he argues the State failed to make a sufficient showing of materiality or reasonable efforts to support a 90-day continuance to secure evidence. An appellate court reviews the application of the speedy trial statute as a question of law using a de novo standard of review. State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003).
K.S.A. 22-3402(1), in applicable part, provides:
"If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3)."
K.S.A. 22-3402(3)(d) allows the trial court to continue a trial without violating the defendant's statutory speedy trial right if "[b]ecause of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section." The trial court may only continue the defendant's trial one time for no more than 30 days based on this exception to the speedy trial rule. K.S.A. 22-3402(3)(d).
The trial court in this case issued a 30-day continuance pursuant to K.S.A. 22-3402(3)(d) on April 1, 2002, because the trial of Combs, Jackson's codefendant, extended beyond the time previously allotted by the court. Although Jackson did not object to this continuance, he claims that the continuance on April 1 was the second 30-day continuance pursuant to K.S.A. 22-3402(3)(d), in violation of the statute. To support this claim, he points to a note on the trial judge's criminal docket notice of scheduled trials, dated November 28, 2001, stating: "It is expected that Jackson will be severed from the co-defendants set on 1-7, but will not waive speedy trial. Thus I am giving this setting for the expected 30-day continuance." (Emphasis added.)
On December 4, 2001, the State moved to sever Jackson's trial from Combs' trial. On December 28, 2001, the trial court granted the State's motion to sever; however, it did not set a new trial date for Jackson. The State moved for a 90-day evidentiary continuance on December 31, 2001. The trial court granted the State's motion for a continuance on January 2, 2002, and set Jackson's trial for April 1, 2002. The record does not contain an order continuing Jackson's trial from January 7, 2002, until January 28, 2002, as the court anticipated on November 28. Jackson cites no authority to support his contention that the note on the court's November 28 docket notice was the equivalent of a court order for a continuance. Because the court's anticipatory note does not amount to a court order, the trial court did not erroneously grant two 30-day continuances in violation of K.S.A. 22-3402(3)(d).
For his second argument, Jackson asserts that the State failed to meet the statutory standard for a 90-day evidentiary continuance to complete the DNA testing. The State requested a continuance to complete the processing of DNA evidence from the multiple crime scenes. Pursuant to K.S.A. 22-3402(3)(c), the trial court may grant a continuance without violating the speedy trial rule when
"[t]here is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety (90) days, and the trial is commenced within one hundred twenty (120) days from the original trial date."
We have previously upheld continuances of up to 120 days for DNA testing in murder cases without specifically analyzing whether the DNA evidence was material. See State v. Green, 254 Kan. 669, 672-73, 867 P.2d 366 (1994); State v. Green, 252 Kan. 548, 551, 847 P.2d 1208 (1993) (codefendant brother to prior Green case, 112-day continuance). Nevertheless, Jackson argues that the DNA evidence was not material because he did not contest the identity of the victim, the location of the murder, the cause of death, or the identity of the murderer. However, contrary to Jackson's argument, these issues were material because the State prosecuted Jackson as an aider and abettor. In order to establish Jackson's guilt, the State had to prove that a crime was committed by Jackson's codefendants. The DNA evidence established that Williams' blood was on Combs' clothing and the knife found in Combs' possession. Even though the DNA evidence did not directly implicate Jackson, it implicated his codefendants and corroborated Clanton's testimony.
Jackson further argues that the State failed to use reasonable efforts to procure the DNA evidence. The DNA evidence was initially collected in June 2001 by Kansas City, Missouri, crime scene investigators and submitted to the Kansas City, Missouri, crime lab. Due to a backlog of 2,000 homicide cases, including 119 cases that required DNA testing, the DNA evidence for Jackson's case was not available in January 2002 for his original trial date. The prosecutor began contacting Kansas City, Missouri, prosecutors and crime lab personnel about processing the evidence on June 6, 2001, 2 days after Williams was murdered. The prosecutor continued her efforts to procure the evidence by sending letters and making multiple phone calls to crime lab personnel. On December 28, 2001, the prosecutor was informed that regardless of the letters and telephone calls, the evidence could not be processed any faster because of the large backlog and insufficient resources.
Jackson argues that the State should have transferred the evidence to the Kansas Bureau of Investigation or another lab to expedite the testing. However, the State advised the trial court that the KBI had a backlog as well and had been forced to close its lab for 2 weeks because of facility problems, further aggravating the KBI's existing backlog. The State argues that it could not have had the evidence processed any faster at another lab and that transferring a large amount of evidence would have raised numerous issues regarding the chain of custody.
We hold that the State's efforts to procure the DNA evidence for trial were reasonable. Although the State can inform crime labs of trial deadlines and encourage them to process evidence as quickly as possible, it cannot control the crime labs' schedules or case loads. In this case, the State informed and encouraged the crime lab at reasonable opportunities, beginning immediately after Williams' body was found, to expedite the evidence testing. The State is not responsible for the other 119 backlogged cases that required DNA testing. Likewise, the State is not responsible for the resource scheduling at the crime lab.
Jackson has failed to demonstrate any error in commencing his trial. The trial court only issued one order for a 30-day continuance due to the congestion in the court's calendar and that continuance complied with K.S.A. 22-3402(3)(d). Additionally, the State's request for an evidentiary continuance complied with K.S.A. 22-3402(3)(c). The trial court did not violate Jackson's statutory right to a speedy trial.
JURY INSTRUCTIONS
Jackson raises several arguments regarding the trial court's jury instructions. First, he argues that the trial court failed to instruct the jury regarding his defenses of withdrawal and compulsion. Second, Jackson asserts that the trial court improperly expanded the instruction for aiding and abetting. Next, Jackson contests the jury instruction about jurisdiction in Kansas. Finally, Jackson argues the trial court should have instructed the jury on felony murder as a lesser included crime of first-degree premeditated murder.
Defenses of Withdrawal and Compulsion
Jackson contends he acted under duress and withdrew from the criminal enterprise before Combs and Clanton drove to Kansas and murdered Williams. Because he relied on the defenses of compulsion and withdrawal, Jackson asserts the trial court should have instructed the jury as to these defenses as he requested.
A trial court is required to instruct the jury regarding the law applicable to the defendant's theory when there is evidence to support the theory, even if the evidence is slight and supported only by the defendant's own testimony. An appellate court must review the evidence in a light most favorable to the defendant if he or she requests the instruction. State v. Scott, 250 Kan. 350, 357, 827 P.2d 733 (1992).
Jackson first argues that under the facts, he was entitled to a jury instruction on his withdrawal defense. He limits his argument for the withdrawal instruction to the murder charge. However, if this court were to agree with Jackson's argument, it would require us to abrogate the current law regarding the defense of withdrawal.
The State prosecuted Jackson as an aider and abettor to murder. Kansas does not recognize the defense of withdrawal from aiding and abetting. State v. Kaiser, 260 Kan. 235, 248-49, 918 P.2d 629 (1996). Although Jackson asks us to overturn Kaiser, he fails to argue any reason for reversing that decision. We have reaffirmed Kaiser in State v. Speed, 265 Kan. 26, 52, 961 P.2d 13 (1998), and State v. Straughter, 261 Kan. 481, 482, 932 P.2d 387 (1997), and find no reason to overturn it now. The defense of withdrawal is not available to Jackson as an aider and abettor; thus, the trial court did not err when it refused to instruct the jury on the defense of withdrawal.
Jackson also argues that he was compelled to beat and strangle Williams because he was afraid of Combs. The defense of compulsion is defined by K.S.A. 21-3209, which provides:
"(1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.
"(2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat."
Although K.S.A. 21-3209(a) precludes the application of compulsion to murder or voluntary manslaughter, Jackson argues the instruction applies to the kidnapping and conspiracy charges and to attempted murder as a lesser included crime of murder. The defense of compulsion requires coercion or duress to be present, imminent, impending, and continuous. It may not be invoked when the defendant had a reasonable opportunity to escape or avoid the criminal act without undue exposure to death or serious bodily harm. State v. Matson, 260 Kan. 366, 385, 921 P.2d 790 (1996).
In State v. Myers, 233 Kan. 611, 615-16, 664 P.2d 834 (1983), this court concluded that compulsion was not available as a defense because the defendant had opportunities to escape from his codefendant and did not contact the authorities to report the crimes. We can apply the same analysis to this case. Jackson had two opportunities to escape from Combs, once when Jackson and Clanton drove Williams' cousin home and again when Jackson went to the convenience store alone for soda and cigarettes. Jackson did not use either of these opportunities to flee from Combs. In addition, Jackson did not alert law enforcement at any time. Because Jackson had a reasonable opportunity to escape and avoid any criminal acts with Combs and Clanton and to summon law enforcement, he cannot invoke the compulsion defense. The trial court did not erroneously deny Jackson's request for the instruction.
Aiding and Abetting Instruction
Jackson argues the trial court erroneously expanded on the PIK Crim. 3d 54.05 and 54.06 instructions for aiding and abetting, see K.S.A. 21-3205, by adding language to read as follows:
"Instruction No. 9
"A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels, or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.
"In addition, a person is also 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.
"All participants in a crime are equally guilty without regard to the extent of their participation. However, mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider or abettor. To be guilty of