State v. Llamas

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,827

STATE OF KANSAS,
Appellee,

v.

SAMUEL D. LLAMAS,
Appellant.


SYLLABUS BY THE COURT


1.
On appeal from an order denying a motion for acquittal, an appellate court
considers all the evidence in the light most favorable to the prosecution and determines if
a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In
doing so, an appellate court does not reweigh the evidence, assess the credibility of the
witnesses, or resolve conflicting evidence.

2.
Mere association with the principals who actually commit a crime or mere
presence in the vicinity of a crime is insufficient to establish guilt as an aider and abettor.
Rather, to be guilty of aiding and abetting in the commission of a crime, a defendant must
willfully and knowingly associate with an unlawful venture and willfully participate in it
as the defendant would in something he or she wishes to bring about or to make succeed.
This intent can be established by circumstantial evidence.

3.
Under the facts of this case, the evidence was sufficient to support a conviction for
criminal discharge of a firearm at an occupied vehicle and for felony murder based on the
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underlying felony of criminal discharge of a firearm at an occupied vehicle because there
was evidence that the defendant aided and abetted the crimes by either intentionally
blocking the victim's escape or driving a vehicle with the intent to transport the shooter
from the crime scene.

4.
Under the facts of this case, the trial court did not err by refusing to add additional
language to the aiding and abetting jury instruction that would have informed the jury
that mere association with the principals who actually commit a crime or mere presence
in the vicinity of a crime is insufficient to establish guilt on an aiding and abetting theory.
Nevertheless, the better practice would be to include such language when a defense is
based on the theory that a defendant was merely present and did not actively aid and abet
a crime because the additional language explains the legal concepts in commonly
understood words.

5.
Generally, if a witness in a jury trial is an accomplice, the better practice is for the
trial court to give a cautionary instruction. If the instruction is requested and is not given,
the result may be error.

6.
If a party incidentally argues that a constitutional harmless error standard applies
but does not specify the constitutional right at issue, the argument is deemed abandoned
and an appellate court will apply the nonconstitutional harmless error standard. Under
that standard, the error is reversible only if the appellate court determines there is a
reasonable probability that the error affected the outcome of the trial in light of the entire
record.

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Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed October 25, 2013.
Affirmed.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause, and Ryan Eddinger,
of the same office, was on the brief for appellant.

Sarah E. Washburn, assistant county attorney, argued the cause, and Amy L. Aranda, assistant
county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, were on the brief
for appellee.

The opinion of the court was delivered by

LUCKERT, J.: A jury convicted Samuel D. Llamas of one count of felony murder,
in violation of K.S.A. 21-3401(b), and one count of criminal discharge of a firearm at an
occupied vehicle, in violation of K.S.A. 21-4219(b). The State's theory was that Llamas
aided and abetted Michael Ismael Navarro, who actually discharged the firearm and
killed Omar Flores. On appeal, Llamas argues he was merely present at the time of the
shooting and did nothing to aid and abet Navarro's discharge of a firearm into the vehicle
occupied by Flores. He raises three legal issues related to this factual contention: (1) The
evidence against him was insufficient; (2) the trial court erred by failing to explain to the
jury that mere association with a principal who commits a crime or mere presence in the
vicinity of the crime is insufficient to establish guilt as an aider and abettor; and (3) the
trial court should have instructed the jury to view with caution the testimony of Navarro's
girlfriend, who Llamas asserts was Navarro's accomplice and whose testimony he
believes was prejudicial to his defense.

We hold: (1) The evidence was sufficient to support the jury's verdict because
there was evidence that Llamas took an active role in the commission of the crimes and
intended to aid and abet Navarro; (2) the trial court did not err in failing to add Llamas'
proposed "mere association or presence" language to the aiding and abetting jury
4

instruction, although the better practice would have been to add the language; and (3) any
error in failing to instruct the jury to consider the testimony of Navarro's girlfriend with
caution because she was an accomplice was harmless. Consequently, we affirm.

FACTS AND PROCEDURAL BACKGROUND

During the summer of 2009, Navarro and Flores agreed to deal methamphetamine.
Flores provided Navarro a train ticket to California, where Navarro was to purchase
drugs. Navarro partially paid for the drugs with money supplied by his girlfriend Ruby
Camarena. Navarro's California source fronted the remaining amount. Navarro returned
to Kansas and delivered the methamphetamine to Flores on July 4, 2009. Flores agreed to
pay Navarro when he sold the drugs and also promised that another individual, Matthew
Miller, would pay for the drugs if Flores was unable to do so.

In the days following the July 4 transaction, Flores did not pay Navarro. The
California source began calling about the "fronted" money Navarro still owed for the
drugs, and Navarro became increasingly angry at Flores. Navarro repeatedly called
Flores' cell phone, but Flores did not answer. It was "like he disappeared." Navarro
believed Flores was avoiding him, so he told his friends, including Llamas, to notify him
if they saw Flores because he had "unfinished business" with Flores. During this time,
Navarro would "hang out" almost daily with a group of friends that frequently included
Llamas and Navarro's girlfriend's brother, Michael Camarena. (Michael and Ruby
Camarena will be referred to by their first names to avoid confusion.) Navarro repeatedly
told these friends that "something was going to happen to Mr. Flores if he did not give
him the money."

At one point, Ruby, who lived with Navarro in Emporia and frequently served as
Navarro's translator, went with Navarro to see Miller in an attempt to collect the money
from him. Miller refused to pay.
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Sometime later, Navarro received word from Michael that Flores was near a
restaurant in Emporia where Michael and his friend Joseph Meyers were eating. Navarro,
Llamas, and Llamas' cousin drove to the restaurant. Navarro got out of the car and
confronted Flores, who was sitting in his white Suburban. Llamas and his cousin
remained in the car, and Michael and others gathered nearby. When Navarro rejoined his
friends, he reported that he had given Flores "additional time to come up with the money"
but had told Flores that he "better pay" or "he would mess him up."

When Flores still did not pay, Navarro asked Llamas to impersonate the California
drug source and call Miller. The purpose of the call was to intimidate Miller into finding
Flores and "letting him know how he felt and what the situation was." According to
Miller, the person on the phone identified himself as "Joe." He asked for Flores' location
and said Flores owed him money. The caller's tone was "convincing" and "firm," and he
told Miller that "he was going to get his money one way or another." Miller subsequently
told Flores about the phone call.

Navarro also continued to look for Flores. Llamas and Navarro's other friends—
basically whoever was "hanging out at the time"—frequently accompanied Navarro as he
would drive around Emporia looking for Flores. As time passed, Navarro became
increasingly agitated and told his friends, including Llamas, he was going to kill Flores.
Despite these statements, Michael and Meyers testified they did not believe Navarro
would kill Flores but thought "at the worst [Flores] was going to get beat up."

On September 8, 2009, Meyers called Ruby on her cell phone. Because Navarro
did not have his own cell phone, Meyers asked Ruby to tell Navarro that Flores had been
seen in Emporia. Meyers also gave her specifics about Flores' location. Ruby relayed the
information to Navarro, who went into the garage where, according to Ruby, he kept a
couple of rifles, referred to as "long guns" or "long rifles." Michael, who disposed of one
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of the rifles in a local river after Flores' death, described the rifle to the jury as a semi-
automatic .22 caliber "long rifle" with a wood stock and steel barrel that was "as long as
my arm spread." Navarro left his house, driving a silver Honda Civic.

Navarro picked up Llamas and drove toward the location where Flores had been
seen. Navarro spotted Flores' white Suburban, which he followed to a motel. Descriptions
of what transpired at that point were given to the jury through the testimony of Michael,
who was told about the incident by Llamas; the motel owner, who observed some of the
incident; and law enforcement officers, who told the jury about statements made to them
by Llamas and the motel owner.

Michael testified that Llamas told him Navarro got out of the car with the rifle. In
response to a question by the prosecutor, Michael agreed that Llamas "was well aware
that there was a rifle" in the Honda. Navarro confronted Flores, who stepped toward
Navarro while grabbing for the rifle. Navarro shot Flores from the side and "then started
unleashing on him." Llamas told Michael, "[I]t was like a movie or it was like—it was
unreal. . . . [Llamas] didn't really believe it was happening." Llamas told Michael that
after the shooting "Llamas did not get back in the vehicle with Mr. Navarro, that Mr.
Navarro drove the vehicle away and Mr. Llamas had walked and met up at the gas station
to get something to drink."

According to the testimony of a law enforcement officer, Llamas initially gave a
much different version of events when he agreed to talk to law enforcement officers
approximately 1 week after the shooting; he denied any knowledge other than what he
had read in the newspaper. When confronted with a "still shot" taken from a convenience
store video that showed him entering the store with Navarro a few minutes after the
shooting, Llamas admitted to being present. He told officers that Navarro picked him up
so they could go to a store to buy beer. While driving, Navarro spotted Flores and started
following him. Llamas said he told Navarro they should get the beer and go home, but
7

Navarro wanted to talk to Flores. Llamas told officers that he stayed in the car while
Navarro got out and talked to Flores. When Llamas heard the gunshots, he panicked, got
out of the car, and ran. Navarro pulled up to him in the Honda and told him to get in the
car, but Llamas refused. According to Llamas, Navarro told him that if he said anything
about what had happened to Flores, the same thing would happen to him. Llamas said he
walked to the nearby convenience store, and Navarro caught up with him.

The motel owner, who witnessed the scene after the shots were fired, told law
enforcement officers that he saw a Honda, a Suburban, and two men standing outside the
vehicles. One man was standing near the driver's door of the Suburban and the other near
the driver's door of the Honda. Both men got into the Honda after the shooting. The
person who was near the Suburban got into the Honda's front passenger's seat, the other
person got into the driver's seat. In his trial testimony, the motel owner was not as
specific regarding the movement of the two men but did testify he saw two men get into
the Honda.

The jury also learned that emergency personnel found Flores in the driver's seat of
his Suburban, slumped over the center console. The doors were closed, but the driver's
side window was rolled down. Based on the blood spatter and Flores' position,
investigators concluded the shooting either began or continued through the open window.
While there was blood outside the vehicle as well, investigators could not determine if it
was left when Flores was pulled out of his vehicle for emergency medical treatment or
was the result of wounds sustained while Flores stood outside the vehicle. Flores was
shot four times in the head, six times in the torso, and once in the arm with a .22 caliber
weapon.

The jury also heard a law enforcement officer testify about the contents of a
surveillance tape that showed the view from several cameras located in the convenience
store near the motel; the tape included a time stamp. Approximately 2 minutes after the
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911 call reporting shots being fired at the motel, Navarro and Llamas "walk[ed] casually
up to the door" of the store while Llamas used his cell phone. The cameras captured
Navarro and Llamas walking into the store together and moving to the back of the store
near the coolers. Approximately 1 minute later, Navarro walked to the front of the store,
looked out the door, and then returned to the coolers. Then, both Navarro and Llamas
returned to the front of the store with two drinks, which Llamas purchased with cash.
Navarro left the store, but Llamas remained and played a video game for 2 to 3 minutes.

Cell phone records were also admitted into evidence. These established that
Llamas called his uncle at the time he and Navarro were approaching the convenience
store; Llamas' uncle testified that Llamas asked him for a ride. The cell phone records
also established that Llamas called Ruby's cell phone less than 50 minutes after the 911
call was logged. Several days later, Llamas called Navarro in Mexico, where Navarro had
gone just days after the shooting.

The State pursued an aiding and abetting theory and charged Llamas with one
count of felony murder, in violation of K.S.A. 21-3401(b), and one count of criminal
discharge of a firearm at an occupied vehicle, in violation of K.S.A. 21-4219(b). The
State granted derivative use immunity, see K.S.A. 22-3415(b)(2) and (c), to several
witnesses who testified at trial, including Ruby, Michael, and Meyers. A jury convicted
Llamas as charged. He received a controlling sentence of life imprisonment without the
possibility of parole for 20 years.

Llamas filed a timely appeal, and this court has jurisdiction over that appeal under
K.S.A. 22-3601(b)(1) (maximum sentence of life imprisonment imposed).




9

THERE WAS SUFFICIENT EVIDENCE

First, Llamas argues the trial court erred in denying his motion for a judgment of
acquittal because there was insufficient evidence to establish that he "maliciously and
intentionally, and without authorization, aided and abetted another in the discharge [of] a
firearm at an occupied motor vehicle" under Jury Instruction No. 16. See K.S.A. 21-
4219(b) (defining elements of criminal discharge of a firearm at an occupied motor
vehicle and classifying the crime as a felony); PIK Crim. 3d 64.02-A-1 (pattern element
instruction for criminal discharge of a firearm—felony). Llamas also argues that because
this evidence was insufficient there was not sufficient evidence for the jury to find
beyond a reasonable doubt that Llamas or another killed Flores and "[t]hat such killing
was done while in the commission of the crime of criminal discharge of a firearm at an
occupied vehicle" under Jury Instruction No. 15. See K.S.A. 21-3401(b) (defining first-
degree murder to include felony murder); K.S.A. 2009 Supp. 21-3436(a)(15) (defining
inherently dangerous felony, whether or not such felony is distinct from the homicide, to
include felony violation of K.S.A. 21-4219, criminal discharge of a firearm at an
occupied vehicle); PIK Crim. 3d 56.02 (pattern element instruction for first-degree felony
murder).

Llamas first raised this issue in a motion for acquittal after the State rested its case.
There, as here, Llamas relied on well-established caselaw holding that "'[m]ere
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 and abettor.'" State v.
Edwards, 291 Kan. 532, 551-52, 243 P.3d 683 (2010) (quoting State v. Green, 237 Kan.
146, Syl. ¶ 4, 697 P.2d 1305 [1985]); see State v. Burnett, 293 Kan. 840, 851, 270 P.3d
1115 (2012). Rather, "to be guilty of aiding and abetting a defendant must willfully and
knowingly associate himself with the unlawful venture and willfully participate in it as he
would in something he wishes to bring about or to make succeed." State v. Schriner, 215
Kan. 86, 92, 523 P.2d 703 (1974). Llamas argued then, as he does now, that it is only the
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circumstance of his presence that provides any evidence that he aided and abetted the
crime.

When Llamas presented his motion for acquittal to the trial court, the court was
obligated to "order the entry of judgment" if there was not sufficient evidence of each
element of a charged crime. K.S.A. 22-3419(1); see State v. Murdock, 286 Kan. 661, 668,
187 P.3d 1267 (2008) (trial court's "decision to grant a motion for judgment of acquittal
is not discretionary"). Here, the trial court denied the motion, noting there was evidence
that Llamas was aware of the ongoing dispute between Navarro and Flores; had heard
Navarro threaten to kill Flores; was in "a very small car, a Honda Civic, and that a .22
rifle was used"; and was present when the shooting occurred. The trial court further
noted, "One could deduce that [in] a small car with a rifle, Mr. Llamas could have known
or should have known what was going to happen given the circumstances should they
ever catch up with Mr. Flores."

In considering the trial court's decision to deny Llamas' motion for acquittal, we
consider all the evidence in the light most favorable to the prosecution and determine if a
rational factfinder could have found the defendant guilty beyond a reasonable doubt.
State v. Raskie, 293 Kan. 906, 919-20, 269 P.3d 1268 (2012). In doing so, we do not
reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting
evidence. Raskie, 293 Kan. at 920; State v. Ward, 292 Kan. 541, 581, 256 P.3d 801
(2011), cert. denied 132 S. Ct. 1594 (2012).

In considering Llamas' arguments that he was only a bystander to the crime, we
must separate his actions from those of Navarro. Llamas does not dispute that there was
sufficient evidence to establish that Navarro—as the principal—committed the
underlying felony of criminal discharge of a firearm at an occupied vehicle and, in the
course of committing that felony, killed Flores. Indeed, Navarro told his friends he shot
Flores, the blood spatter patterns established that shots were fired while Flores was in the
11

vehicle, and Flores died from gunshot wounds. See State v. Farmer, 285 Kan. 541, 545-
48, 175 P.3d 221 (2008) (rejecting theory that evidence of shooter's intent to shoot victim
meant there was insufficient evidence of crime of criminal discharge of a weapon at an
occupied vehicle). Our sole focus is on whether the State presented sufficient evidence
that Llamas maliciously and intentionally aided and abetted Navarro in the commission
of the crimes. To meet the State's burden, it did not have to prove that Llamas intended to
aid or abet the shooting or killing of Flores, only that he intended to aid and abet the
discharge of a weapon at an occupied vehicle, a felony the legislature has deemed
inherently dangerous. The requisite intent to aid and abet the inherently dangerous felony
may be inferred from circumstantial evidence. State v. Goering, 225 Kan. 755, 758, 594
P.2d 194 (1979).

In arguing whether the evidence was sufficient to establish that Llamas willfully
and knowingly participated in the crimes, both parties direct this court to State v. Herron,
286 Kan. 959, 189 P.3d 1173 (2008), which discusses the difference between mere
presence and aiding and abetting. In Herron, the defendant was convicted of felony
murder based on his aiding and abetting the underlying felony of criminal discharge of a
firearm at an occupied dwelling. The defendant argued on appeal that he was unarmed
and was merely present in a van from which other individuals fired weapons. On appeal,
this court rejected that argument, finding there was sufficient evidence that Herron had
aided and abetted the crime. Herron, 286 Kan. at 965-68. The evidence indicated there
had been an ongoing feud between the victim's son and two other men in the victim's
neighborhood, and Herron had been involved in the ongoing dispute. Summarizing the
evidence, this court stated:

"A rational factfinder could easily have concluded that Herron was a willing participant
in a planned, retaliatory shooting. His friends had traded gunfire with [the victim's son]
throughout the day; his good friend had been shot while in a car; and his own house had
been fired on earlier. Furthermore, Herron's associate had stolen the van so that they
12

would not be recognized; the group loaded it with pistols, high-powered semi-automatic
rifles, and ammunition; they drove to the [victim's] house; and they pummeled it with
more than 30 rounds before speeding away, ditching the van, and scattering. Herron's
felony-murder conviction was supported by sufficient evidence." Herron, 286 Kan. at
968.

The Herron court distinguished its case from State v. Simmons, 282 Kan. 728, 148
P.3d 525 (2006). In Simmons, three witnesses were aware of the defendant's plan to rob a
victim, and they ultimately received some fruits of his illegal labors in the form of $100
bills as incentives for silence. The defendant sought reversal of his convictions based on
the trial court's failure to caution the jury concerning "accomplice testimony" in
accordance with PIK Crim. 3d 52.18. The Simmons court concluded there was no error
because, in part, the witnesses did not participate in the crime and, therefore, were not
accomplices. This court held that their mere presence during the planning stages, their
failure to stop or report the crime, and their receipt of stolen goods absent a prearranged
plan of theft and delivery did not make them accomplices. Simmons, 282 Kan. at 737-39.

In distinguishing Simmons, the Herron court emphasized that "when a person
knowingly associates with an unlawful venture and participates in a way that
demonstrates willful furtherance of its success, guilt as an aider and abettor is established.
[Citations omitted.]" Herron, 286 Kan. at 968. Unlike the situation in Simmons, Herron
did more than listen to his associates' discussion. He participated in the planning, the
mobilization, and the actual attack. Herron, 286 Kan. at 968.

Llamas suggests his presence is like that of the witnesses in Simmons. He further
argues the present case is distinguishable from Herron in that "[t]here was no evidence to
show a history of violence between Mr. Flores and Mr. Navarro" and no evidence that
Llamas committed any act to assist in Navarro's "venture." The State disagrees and
contends that, as in Herron, ample evidence supports the conclusion that Llamas
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participated in the events that led up to the shooting and was more than a mere bystander
at the motel when the shooting took place.

Indeed, as the State argues, the evidence, when viewed in the light most favorable
to the prosecution, was sufficient to support Llamas' conviction for felony murder and for
criminal discharge of a firearm at an occupied vehicle. Although there was no history of
violent attacks between Navarro and Flores, it was well known among Navarro's circle of
friends, including Llamas, that Navarro felt a great deal of animosity toward Flores, this
animosity was escalating, and Navarro had threatened to kill Flores. Further, contrary to
Llamas' assertion that he never assisted Navarro in his "venture," there was evidence that
Llamas had actively assisted Navarro over a several-month period by calling Miller and
impersonating the California source and by helping look for Flores. Then, as the trial
court noted, when Llamas got in the car with Navarro on the day of the shooting there
was a "long-rifle" in the car. Michael provided evidence of the length of the rifle and
indicated, based on Llamas' account of what happened, that Llamas was aware Navarro
had the rifle in the car. A reasonable juror could conclude from this evidence that Llamas
had helped Navarro track Flores with knowledge that Navarro planned to use the rifle if
he found Flores.

More significantly, the motel owner told law enforcement officers he saw two men
standing at the scene in the parking lot after the shots were fired—one was standing near
the driver's side of the Suburban and the other near the driver's side of the Honda. The
owner reported that the man who subsequently entered the passenger's side of the Honda
was the one who had been standing near the driver's side of the Suburban. The second
man, who had been standing near the driver's side of the Honda, got into the driver's seat
and drove the Honda out of the parking lot.

As the State points out, the jury could have inferred from this evidence that if
Llamas was the passenger, he had been standing near the driver's door of Flores'
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Suburban during the shooting and, thus, assisted in intimidating Flores or blocking
Flores' ability to escape. Alternatively, if Llamas was the person standing near the driver's
side of the Honda, he purposefully moved from the passenger's side of the vehicle where
he had been riding to the driver's side so that he could drive them away from the scene of
the crime. Either alternative would be an act that aided and abetted the discharge of a
firearm at an occupied vehicle. See State v. Gant, 288 Kan. 76, 84, 201 P.3d 673 (2009)
(driving a vehicle with intent to transport others to or from crime scene sufficient to
support conviction for aiding and abetting crime); State v. Whitaker, 35 Kan. 731, 735, 12
P. 106 (1886) (defendants who surrounded stable to prevent victim's escape guilty of
aiding and abetting assault that resulted in death); cf. State v. Gholston, 272 Kan. 601,
618, 35 P.3d 868 (2001) (witness went with defendant to convenience store where
shooting occurred, but witness never saw the gun in the car and never saw defendant get
out of the car with the gun; thus, there was no evidence that witness had knowingly aided,
associated, or participated in the crime), cert. denied 536 U.S. 963 (2002).

In addition to this direct evidence that Llamas participated in the action at the
scene, there is circumstantial evidence of Llamas' intent to aid and abet Navarro's crimes.
This evidence includes Llamas' participation in the conflict leading up to the shooting, his
actions of getting out of and back into the Honda, his actions of accompanying Navarro
from the scene, his demeanor at the convenience store while interacting with Navarro and
while waiting for his ride after Navarro left the store, and his contact with Navarro after
Navarro was in Mexico. See State v. Morton, 277 Kan. 575, 582, 86 P.3d 535 (2004)
(circumstantial evidence that gives rise to inference of intent includes evidence of "[1] the
nature of the weapon used; [2] lack of provocation; [3] the defendant's conduct before
and after the killing; [4] threats and declarations of the defendant before and during the
occurrence"). From this circumstantial evidence, a reasonable jury could conclude
beyond a reasonable doubt that Llamas formed the intent to aid and abet Navarro as he
shot at the vehicle in which Flores sat. Further, the jury could conclude this intent was
15

formed before Llamas moved from the passenger seat of the Honda to either the driver's
door of the Honda or the driver's side of the Suburban.

In summary, when viewed in a light most favorable to the prosecution, there was
evidence from which a rational factfinder could find Llamas guilty beyond a reasonable
doubt of aiding and abetting Navarro in the commission of the underlying inherently
dangerous felony of criminal discharge of a firearm at an occupied vehicle and in the
commission of felony murder.

MODIFIED VERSION OF PIK CRIM. 3d 54.05

The trial court gave the following instruction on aiding and abetting, which
conforms with PIK Crim. 3d 54.05 (responsibility for crimes of another):

"A person who, either before or during its commission, intentionally aids another
to commit a crime with the 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."

At the jury instruction conference, defense counsel asked that the following
language be added to the aiding and abetting instruction:

"[M]ere 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 abetter. To be
guilty of aiding and abetting in the commission of the crime the defendant must willfully
associate himself with the unlawful venture and willfully participate in it as he would
something he wishes to bring about."

16

This paragraph, adding the "mere association or presence" language, was compiled
from caselaw discussing criminal liability based on aiding and abetting. See State v.
Tyler, 286 Kan. 1087, 1093, 191 P.3d 306 (2008); Schriner, 215 Kan. at 92-93.

On appeal, Llamas argues that the trial court erred in refusing to give the
additional language because the jury was left without direction regarding Llamas'
defense, which was that he was merely present but did not assist Navarro in the act of
shooting Flores. The result, according to Llamas, was that he was hindered from
presenting his defense and the jury was confused, as demonstrated in part when it asked
for a clarification of each criminal charge in "layman's" terms and for a "definition" of
aiding and abetting. He suggests the trial court could have cured the error by providing
the language Llamas had previously suggested, but the court failed to do so and simply
indicated that "[t]he terms and charges are defined within the instructions as previously
given." Finally, Llamas asserts the jury could have understood that Llamas was guilty if
he aided someone during any separate crime—such as aiding in the drug deal by
impersonating a drug dealer in the phone call to Miller—regardless of whether he had an
intent to promote or assist the discharge of a firearm at an occupied vehicle—the charged
crime.

In reviewing a claimed instructional error, we conduct a four-step analysis. Those
steps, with accompanying standards of review, are:

"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
17

denied 132 S. Ct. 1594 (2012)." State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202
(2012).

Here, under the first step of analysis, Llamas preserved this issue by making his
request for the additional language during the instruction conference. At the next step of
analysis, we must consider whether the modified instruction was legally appropriate. In
this regard, Llamas is correct that caselaw supports the content of his proposed
instruction. Nevertheless, the official Comment to PIK Crim. 3d 54.05 indicates that the
trial court may properly refuse to add "mere presence or association" language because
the pattern instruction "clearly informs the jury that intentional acts by a defendant are
necessary to sustain a conviction for aiding and abetting." This comment is consistent
with the holdings of this court in several cases. See Edwards, 291 Kan. at 552; State v.
Pink, 270 Kan. 728, 738-39, 20 P.3d 31 (2001), overruled on other grounds State v.
Gleason, 277 Kan. 624, 88 P.3d 218 (2004); State v. Jackson, 270 Kan. 755, 760-61, 19
P.3d 121 (2001); State v. Ninci, 262 Kan. 21, 46, 936 P.2d 1364 (1997); State v. Scott,
250 Kan. 350, 361, 827 P.2d 733 (1992); State v. Hunter, 241 Kan. 629, 639, 740 P.2d
559 (1987).

Edwards, the most recent of these opinions, was filed approximately 6 months
after Llamas' trial. There, we held the trial court did not err in refusing to give an
instruction that was nearly identical to the one requested by Llamas. See Edwards, 291
Kan. at 552. In asserting error, Edwards argued the additional language was necessary
because of his theory of defense, which was that he merely accompanied the others to the
victim's house to buy marijuana, without any knowledge of the robbery plan.

The Edwards court acknowledged that the mere association or presence language
reflected Kansas law and precisely fit Edwards' defense theory. And the court went so far
as to say that "perhaps the better practice would have been to modify the patterned
18

instruction accordingly." Edwards, 291 Kan. at 552. But the Edwards court rejected an
argument that error had been committed, stating:

"Nevertheless, this court has repeatedly held that juries are presumed to intuit
from the word 'intentionally' in the patterned instruction that proof of mere association or
presence would be insufficient to convict. See, e.g., State v. Hunter, 241 Kan. 629, 639,
740 P.2d 559 (1987); [State v.] Davis, 283 Kan. [569,] 582-83[, 158 P.3d 317 (2006)].
Based on that precedent, we decline to find that the district court's refusal to add the
requested language to the patterned instruction on aiding and abetting was reversible
error." Edwards, 291 Kan. at 552.

See Pink, 270 Kan. at 739 (stating it was "well established" that a trial court does not err
when it does not add mere association or presence language to aiding and abetting
instruction).

As in Edwards, the mere association or presence language requested by Llamas
reflected Kansas law and fit his theory of defense. But, as our past cases hold, the
instruction as given was consistent with and did not foreclose his defense.

Further, while the aiding and abetting instruction did not limit the jury's
consideration to only aiding and abetting the criminal discharge of a firearm at an
occupied vehicle, the elements instruction indicated that the State had to establish that
Llamas "aided and abetted another in the discharge [of] a firearm at an occupied motor
vehicle." When we review claimed instructional error, "we examine the instructions as a
whole, rather than isolate any one instruction." State v. Ellmaker, 289 Kan. 1132, 1139-
40, 221 P.3d 1105 (2009), cert. denied 130 S. Ct. 3410 (2010). In addition, we presume
the jury followed the instructions. State v. Mitchell, 294 Kan. 469, 482, 275 P.3d 905
(2012). Applying these rules, we reject Llamas' argument that the jury was not clearly
informed that Llamas had to aid and abet the commission of the inherently dangerous
felony of criminal discharge of a firearm at an occupied vehicle.
19


Finally, there is no indication the failure to add the mere association or presence
language led to a misunderstanding by the jury. Even though the jury asked for
explanations of the elements of the crimes and for a definition of aiding and abetting, the
jury's request does not suggest that the jurors were confused about the focus of this
issue—that Llamas had to intentionally act in a manner that aided and abetted Navarro's
criminal discharge of a firearm at an occupied vehicle.

In summary, we conclude the trial court did not err in refusing to add the requested
language to the PIK instruction. Because we reach that conclusion, we need not address
the remaining steps in the analysis of claimed instructional error.

Nevertheless, we reiterate and stress what we said in Edwards, 291 Kan. at 552:
The better practice would be to include the mere association or presence language when a
defense is based on the theory that a defendant was merely present and did not actively
aid and abet a crime. We encourage trial judges to use language from our cases, such as
was suggested in this case. Failing to do so may not constitute error if, as in this case, the
instructions properly and fairly state the law as applied to the facts of the case. See
Plummer, 295 Kan. at 161; Ellmaker, 289 Kan. at 1140. That does not mean the
instruction cannot be improved upon, and adding the mere association or presence
language would do so by explaining the legal concepts in commonly understood words.

INSTRUCTIONAL ERROR IN FAILING TO LIST ALL ACCOMPLICES

Finally, Llamas argues the trial court erred in failing to include a reference to
Ruby in Instruction No. 10, which conformed to PIK Crim. 3d 52.18 and provided as
follows:

20

"An accomplice witness is one who testifies that he or she was involved in the
commission of the crime with which the defendant is charged. You should consider with
caution the testimony of an accomplice. You may only apply this instruction to the
testimony of Joe Meyers."

During the jury instruction conference, Llamas requested Ruby be listed in the
accomplice jury instruction along with Meyers. Defense counsel emphasized that Ruby
regularly translated for Navarro and argued that it was hard to believe that she did not
understand the meaning of Meyers' phone call informing Navarro of Flores' location on
the night of the shooting. In essence, the defense counsel argued Ruby played as much or
more of a role in the crimes as Meyers. The trial court refused to include Ruby in the
instruction, limited the instruction to Meyers, and did so without explaining the basis for
the differentiated treatment between Meyers and Ruby.

Turning to the four-step analysis related to claimed instructional error, Llamas'
request during the instruction conference preserved this issue for appellate review. See
Ellmaker, 289 Kan. at 1139 ("[T]he purpose of requiring an objection is to allow the
district court to correct an error, if one occurred."). As to the second step, there is no
dispute that the instruction was legally appropriate. We have stated that if a witness in a
jury trial is an accomplice, "'whether that [accomplice's] testimony is corroborated or not,
the better practice is for the trial court to give a cautionary instruction. If the instruction is
requested and is not given, the result may be error.'" State v. Tapia, 295 Kan. 978, 996,
287 P.3d 879 (2012) (quoting State v. Moore, 229 Kan. 73, 80, 622 P.2d 631 [1981]); see
PIK Crim. 3d 52.18, Notes on Use (better practice is to give this cautionary instruction
regardless of whether there is corroborating evidence, as long as the accomplice is not
also a codefendant in the trial).

The dispute in this appeal focuses on the next step of the analysis—whether the
instruction was factually appropriate as to Ruby. This "naturally depends on whether the
21

witness is an accomplice." Tapia, 295 Kan. at 996. In Simmons, we explained the
meaning of an "accomplice witness," stating:

"PIK Crim. 3d 52.18 defines 'accomplice witness' as one who testifies that he or
she was 'involved in the commission' of the defendant's charged crime. See State v. Abel,
261 Kan. 331, 336, 932 P.2d 952 (1997), disapproved on other grounds State v.
Mathenia, 262 Kan. 890, Syl. ¶ 3, 942 P.2d 624 (1997). This is consistent with the
general view which is that '[a] person is an "accomplice" of another in committing a
crime if, with the intent to promote or facilitate the commission of the crime, he solicits,
requests, or commands the other person to commit it, or aids the other person in planning
or committing it." 1 Torcia, Wharton's Criminal Law § 38, p. 220 (15th ed. 1993). Thus,
the term refers to a wide range of persons who, at common law, were said to have
primary or secondary liability—principals who are codefendants, accessories,
conspirators, or aiders and abettors. However, although the term is often used
inadvertently and without precision as a synonym for one of these categories of criminal
actors, technically the term 'accomplice witness' applies only when one who has been
involved in the commission of a crime is called to testify against another during the
course of a trial. See 21 Am. Jur. 2d, Criminal Law § 205." Simmons, 282 Kan. at 737.

This court has also discussed when a witness is not an accomplice. As particularly
applicable to the parties' arguments in this case, we have held that "mere presence during
the planning or commission of a crime does not make one an accomplice." Simmons, 282
Kan. at 738 (the witnesses' mere presence during the planning stages, their failure to stop
or report the crime, and their receipt of stolen goods without a prearranged plan did not
make them accomplices); see, e.g., State v. Humphery, 267 Kan. 45, 62-63, 978 P.2d 264
(1999) (witness was not an accomplice as contemplated by the jury instruction; she had
sex with the victim and directed him to drive to the place where he was killed, but she
had no involvement in the robbery or murder in any way). In addition, this court has
specifically rejected the idea that "mere 'involvement in events' makes a witness an
accomplice within the meaning of PIK Crim. 3d 52.18. [Citation omitted.] Instead, the
witness must have been involved in the commission of the crime with which the defendant
22

is charged." State v. Davis, 283 Kan. 569, 580, 158 P.3d 317 (2006); see Davis, 283 Kan.
at 577-80 (although witness may have been involved with events after the murder, only
evidence at trial regarding witness' whereabouts and involvement was offered by witness
herself, who testified that she was not present at time of the murder; there was no
evidence that she otherwise participated in the planning or commission of the murder,
other than the events that occurred after the murder); Gholston, 272 Kan. at 618 (witness
went with defendant to convenience store where shooting occurred, but witness never
saw the gun in the car and never saw defendant get out of the car with the gun; thus, there
was no evidence that witness had knowingly aided, associated, or participated in the
crime); cf. Tapia, 295 Kan. at 996-97 (defendant was charged with the crime of burglary
and the witness' admitted role as the driver and lookout for the burglary clearly placed
him in the role of accomplice).

In this case, we agree with Llamas' argument that there was circumstantial
evidence of Ruby's intent to aid and abet the completion of the crime when she relayed
the information from Meyers to Navarro. There was evidence suggesting she knew
Navarro planned to hunt down Flores and shoot him if he did not repay the money, part
of which she had provided. Hence, it was legally and factually appropriate to have
included Ruby in the accomplice instruction, and the failure to do so was error.

Because the trial court erred, we must determine whether the error was harmless.
Llamas cites to the constitutional harmless error standard but does not argue how the
error violated a constitutional right. "A point raised incidentally in a brief and not argued
there is deemed abandoned." State v. Holman, 295 Kan. 116, 142, 284 P.3d 251 (2012).
We, therefore, apply the nonconstitutional harmless error standard under which "the error
is reversible only if we determine that there is a 'reasonable probability that the error will
or did affect the outcome of the trial in light of the entire record.' Ward, 292 Kan. at 569."
Plummer, 295 Kan. at 168.

23

In determining whether the failure to give an accomplice instruction was
reversible error, this court has examined the extent and importance of an accomplice's
testimony, as well as any corroborating testimony. Tapia, 295 Kan. at 997; State v.
Simmons, 282 Kan. 728, 740, 148 P.3d 525 (2006); see State v. Moody, 223 Kan. 699,
702, 576 P.2d 637 (failure to give accomplice instruction can create trial error,
particularly when the accomplice testimony is uncorroborated), cert. denied 439 U.S. 894
(1978).

Here, Llamas argues that Ruby's assertions "were critical components" of the
State's case because she placed Llamas at the scene of the confrontation near the
restaurant and during times when Navarro was searching for Flores. He also points to
Ruby's testimony that Llamas' cousin stole a gun from her house and argues the jury
could have concluded that Llamas was armed with the stolen gun when Flores was shot.

None of these points is persuasive. While Ruby did testify to Llamas' presence at
the restaurant and on occasions when Navarro searched for Flores, Michael and Meyers
corroborated this in their testimony. Further, they testified that Navarro told many of his
friends that he was angry about the drug transaction and that if Flores did not pay him,
something was going to happen. They also corroborated Ruby's testimony that Navarro
had threatened to kill Flores, although they testified that they did not believe Navarro
would do so. In essence, Ruby's testimony about Llamas' role was corroborated by other
witnesses. Finally, there was no forensic or other evidence suggesting there were two
guns at the scene, and no evidence suggesting or implying that Llamas might have
acquired the stolen gun from his cousin.

Based on our review of the entire record, we determine there is not a reasonable
probability that the error affected the outcome of the trial. See Plummer, 295 Kan. at 168;
State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594
(2012).
24

Affirmed.

* * *

JOHNSON, J., dissenting: The State's theory in prosecuting Samuel D. Llamas for
felony murder was founded upon a claim that Llamas aided and abetted Michael Ismael
Navarro in committing the crime of discharging a firearm at an occupied motor vehicle,
which resulted in the death of Omar Flores. In my view, the evidence was insufficient to
establish that Navarro committed the underlying felony of criminal discharge of a firearm
at an occupied motor vehicle, which would negate the notion that Llamas willingly
participated in the commission of that crime, regardless of whatever assistance Llamas
may have given Navarro with any other crimes he may have committed.

The majority's recitation of the facts establishes that Flores owed Navarro a drug
debt and that Llamas had tried through nonviolent means to help Navarro collect that
money. The most that the jury could have inferred from the evidence about the day of the
shooting was that Llamas got into the passenger seat of Navarro's vehicle, observed the
presence of a firearm, and understood that Navarro planned to use the weapon to either
coerce Flores into paying his drug debt or do bodily harm to Flores. Nothing in the record
even hints at the possibility that Llamas could have divined the idea that Navarro
intended to use the rifle to shoot at or damage Flores' vehicle, much less that Llamas
willingly participated in furthering such intentions. Moreover, notwithstanding the State's
creative prosecutorial theory, the actual evidence presented at trial established that the
firearm was discharged at Flores, not at his Suburban. There was no evidence that any of
the multiple rounds discharged from Navarro's rifle struck the vehicle, while Flores
suffered 11 gunshot wounds. The possibility that some of the rounds may have traveled
through an open car window does not refute the clear fact that the weapon was aimed at
and the rounds were intended to hit Flores' body, not his motor vehicle.

25

Granted, the majority can rely on State v. Farmer, 285 Kan. 541, 545-48, 175 P.3d
221 (2008), in which the majority opinion, authored by then Chief Justice McFarland,
interpreted the crime defined in K.S.A. 21-4219(b)—discharge of a firearm at an
occupied motor vehicle—to include the act of intentionally discharging a firearm at a
specific person, so long as that person happened to be sitting inside a motor vehicle at the
time of the shooting. But as the dissent in Farmer pointed out, that interpretation
contradicts both the plain and unambiguous language of the statute and the obvious
purpose of the statute as revealed in its legislative history. 285 Kan. at 556-58 (Beier, J.,
dissenting).

The facts in Farmer are closely analogous to the facts in this case with respect to
the issue at hand, making the statutory construction analysis in the Farmer dissent
uncannily germane here:

"The crime at issue requires 'discharge of a firearm at an occupied . . . motor vehicle.'
K.S.A. 2006 Supp. 21-4219(b). The phrase, 'at [a] . . . motor vehicle,' does not look or sound
ambiguous to me. Shooting at a motor vehicle is one thing; shooting at a person is something else.
Regardless of whether the State's or the defendant's version of events is relied upon here, [the
defendant] shot only at [the victim]. Evidence of where [the defendant] may have been standing
when he fired, of where [the victim] may have been sitting when he was hit, or of where two shell
casings may have fallen after being ejected from [the defendant's] weapon, is interesting but not
determinative." 285 Kan. at 556 (Beier, J., dissenting).

The Farmer dissent went on to explain that even if one could manufacture an
ambiguity in the statutory provision that would permit us to review legislative history, the
result would be the same. The specific purpose of the law was to create a felony offense
that would apply to drive-by shootings "'when aggravated assault and aggravated battery
fail[] to cover the act'" because the victim was "'not placed in immediate apprehension of
bodily harm'" or "'the requisite intent to injure, required for battery, cannot be shown.'"
285 Kan. at 556-57 (quoting Report of Subcommittee, House Judiciary Committee on
Drive-by Shooting [H.B. 2709], February 25, 1992). Therefore, holding that the crime of
26

discharging a firearm at an occupied motor vehicle encompasses the situation where the
State's evidence has shown all of the elements of aggravated battery—including the
requisite intent to injure a specific person—flies in the face of the statute's legislative
history and defies our most fundamental rule of statutory construction. See State v.
Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010) (most fundamental rule of statutory
construction is that intent of legislature governs if that intent can be ascertained).

Today, I would also offer the rule of lenity as yet another well-established reason
to reject the Farmer holding. The rule of lenity is a general rule of statutory construction
whereby criminal statutes are strictly construed in favor of the accused, which means that
"[a]ny reasonable doubt as to the meaning of the statute is decided in favor of the
accused." State v. Coman, 294 Kan. 84, 96, 273 P.3d 701 (2012). In fact, if the statutory
interpretation favoring the accused is reasonable and sensible, this court is required to
utilize that interpretation. See Coman, 294 Kan. at 97 (if "there are two reasonable and
sensible interpretations of a criminal statute, the rule of lenity requires the court to
interpret its meaning in favor of the accused"). I would submit that the Farmer majority's
interpretation of K.S.A. 21-4219(b) was not reasonable and sensible in its own right, and
it certainly was not the only available reasonable and sensible interpretation. By giving
the criminal statute an expansive reading, the Farmer majority interpreted it in favor of
the State, not the accused, and effectively saved a felony-murder conviction that was not
proved as charged.

I would not replicate Farmer's result-oriented mistake here. To the contrary, I
would overrule Farmer in the same manner as we have recently done with other prior
decisions that we found to be unacceptably contrary to the applicable statutory
provisions. See, e.g., State v. Berry, 292 Kan. 493, 512-14, 254 P.3d 1276 (2011)
(overruling decades-old court-made special rule for lesser included offense instructions
on felony murder in favor of applying K.S.A. 22-3414[3] as written); Bergstrom v.
Spears Manufacturing Co., 289 Kan. 605, 609-10, 214 P.3d 676 (2009) (overruling string
27

of cases that imposed good-faith effort requirement for work disability as being contrary
to plain language of K.S.A. 44-510e[a]); Casco v. Armour Swift-Eckrich, 283 Kan. 508,
525-28, 154 P.3d 494 (2007) (overruling 76-year-old parallel injury rule as being
contrary to workers compensation statutes).

Finally, regardless of whether the crime is defined as shooting at the car or
shooting at the person, I discern that the evidence is insufficient to support that Llamas
aided and abetted in the commission of that crime. Rather, the only reasonable inference
to be drawn from the evidence is that Llamas formed the intent to drive the getaway car
after Navarro shot Flores, which would constitute the crime of aiding a felon, pursuant to
K.S.A. 21-3812(a). Aiding a felon is a crime separate and distinct from the offense
committed by the person receiving the aid. Consequently, given that Llamas' act of
driving the getaway vehicle is irrelevant to the charged crime, I would find that the
remaining evidence is too thin and speculative to support a conviction for aiding and
abetting Navarro's criminal enterprise. See State v. Spear, 297 Kan. 780, 791, 304 P.3d
1246 (2013) ("many courts have observed that '[a] guess is not proof beyond a reasonable
doubt'" [quoting United States v. Spirk, 503 F.3d 619, 612 (7th Cir. 2007)]). I would
reverse Llamas' convictions for insufficient evidence.

BEIER and MORITZ, JJ., join in the foregoing dissent.