No. 94,187
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
RAY STEVENS,
Appellant.
SYLLABUS BY THE COURT
1. In a prosecution for driving under the influence of alcohol in violation of subsection (a)(3) of K.S.A. 2005 Supp. 8-1567, a deficient sample breath test result is admissible as "other competent evidence" under K.S.A. 2005 Supp. 8-1013(f)(2).
2. To justify reversal of a conviction for the failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant.
3. Under the facts of this case, the prosecutor's failure to provide the defendant with a copy of his deficient sample test results and documents pertaining to the breath testing machine until the morning of trial did not constitute reversible error. The defendant failed to show that he was clearly prejudiced by the late disclosure of such evidence.
4. Generally, venue is a question of fact for the jury to determine in the trial of the case in chief. Venue may be established by proof of facts and circumstances introduced in evidence from which the place or places of commission of the crime or crimes may be fairly and reasonably inferred.
5. It is not necessary to prove the jurisdictional facts of venue by specific question and answer that the offense occurred in the particular county. It may be established by other competent evidence showing the offense was committed within the jurisdiction of the court.
6. Under the facts of this case, there was sufficient evidence to establish that the offense was committed in Crawford County, Kansas.
7. In multiple acts cases, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime.
8. In an alternative means case, a single offense may be committed in more than one way. The jury must be unanimous as to guilt for the single crime charged. As long as substantial evidence supports each alternative means, jury unanimity is not required as to the means by which the crime is committed.
9. K.S.A. 2005 Supp. 8-1567 encompasses both those accused of actually driving while under the influence and those who merely tried but failed, with no election required.
10. Under the facts of this case, the defendant was not deprived of his right to a unanimous jury verdict when there was sufficient evidence to support either driving or attempting to drive under the influence of alcohol in violation of K.S.A. 8-1567(a)(3).
11. The threshold issue in determining whether Miranda warnings are required is whether a person is in custody when inculpatory statements are made; this determination is made on a case-by-case basis according to the facts.
12. An objective standard is used to judge whether an interrogation is custodial. The proper analysis is how a reasonable person in the suspect's position would have understood the situation.
13. Under the facts of this case, the defendant's statements to law enforcement officers were admissible evidence because they were not the product of a custodial interrogation.
14. In Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the United States Supreme Court held that testimonial statements of unavailable witnesses are inadmissible unless the defendant was afforded an opportunity to cross-examine those witnesses.
15. In this case, the admission of the defendant's statements to law enforcement officers into evidence did not violate his Sixth Amendment right of confrontation.
16. K.S.A. 2005 Supp. 22-4513(a) requires the trial court to tax as costs either: (1) the amount claimed by the Board of Indigents' Defense Services for the expenses of providing counsel and other defense services; or (2) the amount allowed by the Board of Indigents' Defense Services reimbursement tables as set forth in K.S.A. 22-4522, whichever amount is less. This figure must be taxed before the trial court may adequately follow the requirements of K.S.A. 2005 Supp. 22-4513(b), which requires it to balance repayment of the costs against the defendant's financial ability to pay.
Appeal from Crawford District Court; A.J. WACHTER, judge. Opinion filed July 28, 2006. Affirmed in part, reversed in part, and remanded with directions.
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Razmi M. Tahirkheli, assistant county attorney, John Gutierrez, county attorney, and Phill Kline, attorney general, for appellee.
Before PIERRON, P.J., GREEN and JOHNSON, JJ.
GREEN, J.: Ray Stevens appeals his conviction of driving or attempting to drive under the influence of alcohol in violation of K.S.A. 2005 Supp. 8-1567(a)(3). Stevens raises seven issues on appeal: (1) that the trial court erred in not granting his motion for a new trial; (2) that the trial court erred in allowing breath test results into evidence without granting him a continuance; (3) that there was insufficient evidence to prove that he committed the crime in Crawford County; (4) that the trial court erred in failing to require the State to elect either operating or attempting to operate under the influence of alcohol as its theory of prosecution, and he was denied his right to a unanimous jury verdict; (5) that the trial court erred in allowing Stevens' statements to be admitted into evidence; (6) that there was cumulative error; and (7) that the trial court erred in assessing the reimbursement of attorney fees. We affirm in part, reverse in part, and remand with directions.
Stevens' conviction in this case stemmed from events that occurred on the afternoon of April 18, 2004. Officer Dave Justice, who was on patrol duty in Pittsburg, Kansas, was called to a residence at 118 West Madison concerning a criminal trespass complaint. Within minutes of receiving the dispatch, Justice arrived at the residence and saw a Jeep parked in the street. Two people were in the front seat. Justice saw Stevens get out of the driver's side of the Jeep, stumble, and walk unsteadily towards the residence.
Justice yelled to Stevens several times, but Stevens did not respond. Stevens continued towards the residence and knocked on the door. Justice then walked behind Stevens and yelled to him. Stevens turned around and walked towards Justice. Justice asked Stevens to move closer to the street to speak with him. Justice told Stevens about a criminal trespass complaint that a resident had filed against him the previous day.
While speaking with Stevens, Justice smelled a strong odor of alcohol emanating from Stevens. When Justice asked Stevens if he had been drinking, Stevens admitted that he had been drinking. Justice asked Stevens why he had gotten out of the driver's side of the Jeep, but Stevens would not respond. After other officers arrived at the location, Justice spoke with the passenger in the Jeep. Justice saw two alcohol beverage cans in the cup holders in the Jeep. Justice also saw a brown paper bag containing what appeared to be a liquor bottle with a broken seal inside the Jeep. When Justice asked what was in the paper bag, the passenger handed it to him. The paper bag contained a half-empty 375 milliliter bottle of whiskey.
After discovering these items, Justice told Stevens that he suspected that Stevens was under the influence of alcohol. During their conversation, Stevens admitted to driving the Jeep to the residence. Stevens agreed to undergo field sobriety testing. Justice attempted to perform three different field sobriety tests; however, Stevens either did not cooperate or refused to complete the tests. After refusing to complete the third field sobriety test, Stevens stated that he was driving, that Justice was going to do what he wanted, and that to "go ahead and get through with it."
Justice placed Stevens under arrest and took him to the police station where his breath was tested. Although Stevens agreed to take the breath test, he initially refused to blow into the breath testing machine. When Stevens finally blew into the breath testing machine, he failed to blow enough air for a full sample. The breath testing machine registered a deficient sample with a .205 alcohol concentration.
Stevens was charged with operating or attempting to operate a vehicle under the influence of alcohol in violation of K.S.A. 2005 Supp. 8-1567(a)(3) and transporting an open container of alcoholic beverage in violation of K.S.A. 8-1599. The jury convicted Stevens of the operating or attempting to operate a vehicle under the influence of alcohol charge and acquitted him of the open container charge. Stevens moved for a judgment of acquittal or, alternatively, a new trial. Stevens alleged several errors that occurred during the course of his case. In a detailed written order, the trial court denied Stevens' motion for judgment of acquittal or new trial.
Motion for New Trial
First, Stevens argues that the trial court erred in denying his motion for a new trial based on the admission of the deficient breath test results into evidence. Whether to grant or deny a motion for a new trial is a matter which lies within the sound discretion of the trial court, and an appellate court reviews that decision under an abuse of discretion standard. State v. Flynn, 274 Kan. 473, 513, 55 P.3d 324 (2002).
Moreover, Stevens' argument requires this court to interpret various statutory provisions. Interpretation of a statute is a question of law over which an appellate court's review is unlimited. We are not bound by the trial court's interpretation of a statute. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
Before trial, Stevens moved to suppress his deficient sample breath test results, arguing in part that such results were not reliable evidence. The trial court denied Stevens' motion to suppress, stating that there was insufficient evidence at the time to establish whether the breath test results should be excluded. The State introduced the deficient sample breath test results into evidence at trial during Officer Roughton's testimony. Stevens objected on the ground that the State had not presented any evidence that the test had been conducted properly. Finding that the State had laid a proper foundation, the trial court overruled Stevens' objection and admitted the test results into evidence.
In moving for a new trial, Stevens cited State v. Hermann, 33 Kan. App. 2d 46, 99 P.3d 632 (2004), where this court held that a deficient sample breath test could not be admitted as "other competent evidence" during a prosecution under K.S.A. 8-1567(a)(1). In denying Stevens a new trial, the trial court distinguished Hermann, stating that Stevens was prosecuted under subsection (a)(3), not subsection (a)(1), of K.S.A. 2005 Supp. 8-1567. The trial court determined that partial sample breath test results are admissible evidence as long as a defendant was not prosecuted under subsection (a)(1) of K.S.A. 2005 Supp. 8-1567.
K.S.A. 2005 Supp. 8-1567(a)(3), the subsection under which Stevens was convicted, states in relevant part: "No person shall operate or attempt to operate any vehicle within this state while . . . under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle." K.S.A. 8-1005 discusses the evidence that can be used in a criminal proceeding against a defendant who has been charged with driving under the influence of alcohol. K.S.A. 8-1006(a) states that "[t]he provisions of K.S.A. 8-1005, and amendments thereto, shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or drugs, or both." (Emphasis added.)
Under K.S.A. 2005 Supp. 8-1013(f), "'[o]ther competent evidence' includes: (1) Alcohol concentration tests obtained from samples taken two hours or more after the operation or attempted operation of a vehicle; and (2) readings obtained from a partial alcohol concentration test on a breath testing machine." (Emphasis added.) K.S.A. 2005 Supp. 8-1013(f)(2) states that "other competent evidence" includes a partial alcohol concentration test. A deficient sample test is only a partial test of the Intoxilyzer 5000 and, therefore, is akin to a partial alcohol concentration test. As a result, a deficient sample falls within the definition of other competent evidence under K.S.A. 2005 Supp. 8-1013(f)(2). Similarly, in State v. Maze, 16 Kan. App. 2d 527, 533-34, 825 P.2d 1169 (1992), which was a criminal proceeding for driving under the influence of alcohol, this court determined that a deficient sample reading was admissible as other competent evidence under K.S.A. 8-1013(f)(2) and K.S.A. 8-1006(a).
Because a deficient sample breath test is included within the meaning of other competent evidence under K.S.A. 2005 Supp. 8-1013(f)(2), and because other competent evidence is admissible under K.S.A. 8-1005 and 8-1006 in criminal proceedings for driving under the influence of alcohol, it is apparent that Stevens' deficient sample breath test result was admissible in his prosecution under K.S.A. 2005 Supp. 8-1567(a)(3).
Nevertheless, continuing with his argument contained in his motion for a new trial, Stevens cites to Hermann to support his contention that the deficient sample breath test results were inadmissible evidence. In Hermann, the defendant was convicted under K.S.A. 8-1567(a)(1), which states that an individual shall not operate or attempt to operate any vehicle in Kansas while "[t]he alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more." (Emphasis added.) This court applied the legal maxim expressio unius est exclusio alterius (the inclusion of one thing implies the exclusion of another) to conclude that "the intent of the legislature was to limit other competent evidence to only paragraph (1) of subsection (f) of K.S.A. 8-1013 and exclude all others." 33 Kan. App. 2d at 50.
Unlike K.S.A. 2005 Supp. 8-1567(a)(1), K.S.A. 2005 Supp. 8-1567(a)(3) does not point to a particular subsection of K.S.A. 2005 Supp. 8-1013 concerning "other competent evidence." Therefore, the reasoning in Hermann does not apply to this case.
Nevertheless, Stevens maintains that allowing a deficient sample breath test into evidence would render K.S.A. 2005 Supp. 8-1567(a)(1) meaningless. Stevens argues that the State could simply charge driving under the influence of alcohol under K.S.A. 2005 Supp. 8-1567(a)(3) and use the deficient sample breath test to prove a defendant's alcohol level was over the legal limit when it could not do so under K.S.A. 2005 Supp. 8-1567(a)(1). Under K.S.A. 2005 Supp. 8-1567(a)(1), the State needs only to prove that the alcohol concentration in a person's blood or breath is .08 or more to show that a person is in violation of this subsection. The language under this particular subsection indicates that the legislature intended for the alcohol concentration to be proved by a test conducted on a complete sample of an individual's blood or breath. Under K.S.A. 2005 Supp. 8-1567(a)(3), however, the State can use a variety of evidence to show that an individual was driving under the influence of alcohol to a degree that rendered him or her incapable of safely driving a vehicle. A deficient sample breath test, while not conclusive evidence that an individual was committing the crime of driving under the influence of alcohol, can be used in conjunction with a variety of circumstances to establish a DUI violation under K.S.A. 2005 Supp. 8-1567(a)(3).
Stevens' argument on this issue really lies with the legislature. This court follows the plain meaning rule. This rule states that when the language of a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed. There is no room for judicial construction. See Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). Citing K.S.A. 8-1013(f)(2) and K.S.A. 8-1006(a), the Maze court held that readings obtained from a partial alcohol concentration test on a breath testing machine are statutorily admissible. 16 Kan. App. 2d 527, Syl. ¶ 2. Because Stevens' argument runs counter to the plain meaning rule, it fails.
Admission of Breath Test Results
Next, Stevens argues that the trial court erred in admitting the deficient sample breath test results into evidence without granting him a continuance.
On the morning of trial, the State provided defense counsel a copy of Stevens' deficient sample breath test results. Defense counsel conceded that he had been aware of the deficient sample breath test and that Stevens was not prejudiced by the late receipt of that document. Nevertheless, defense counsel argued that he had not been provided with any records pertaining to the maintenance of the Intoxilyzer 5000. The record shows that before trial, the trial court ordered the State to disclose copies of scientific and lab reports, as well as all evidence or information possessed by the police or prosecutor that would aid in the preparation of the defense.
The trial court admonished the State for failing to provide the Intoxilyzer 5000 maintenance records to defense counsel. The trial court asked defense counsel how he was prejudiced by the State's failure to provide the records. Defense counsel maintained that he could have reviewed the documents to determine if there was anything that seemed to be irregular. If he discovered anything that seemed to be irregular, he could have spoken with a different law enforcement agency and possibly called a rebuttal witness. Defense counsel requested that the trial court exclude any evidence of the breath test.
The trial court ordered the State to turn over the records pertaining to the Intoxilyzer 5000 to defense counsel. The trial court stated that defense counsel could look at the records and determine if there was anything in those records that would prejudice his client. After voir dire, opening statements from the State and defense counsel, and a noon recess, the trial court noted that defense counsel had an opportunity to review the records and asked how the late submission of the records had prejudiced the defense. Defense counsel pointed out that the officer performing the breath test on Stevens had failed to record it in a log book. Defense counsel argued that he was prejudiced because he was unable to call an expert to say that all tests, including a deficient sample test, should be put in the log book. The trial court found that whether the test had been recorded in a log book was irrelevant. The trial court found that the State's delay in providing the records did not prejudice the defense.
The trial court then allowed the State and defense counsel to examine Officer Roughton, the records custodian, outside of the jury's presence concerning the reliability of the deficient sample. The trial court determined that it would allow the State to establish a foundation for the admission of the deficient sample breath test. Moreover, the trial court indicated that defense counsel had ample time to find an expert witness to testify that a deficient sample breath test is inaccurate.
In moving for a new trial, Stevens renewed his argument that he was prejudiced by the State's delay in providing documents. The trial court rejected Stevens' argument and found that he had not been prejudiced.
In State v. Carmichael, 240 Kan. 149, 152, 727 P.2d 918 (1986), our Supreme Court discussed the State's duty to disclose exculpatory evidence:
"A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is material to the guilt or innocence of the defendant. Suppression of such evidence is a violation of the defendant's Fourteenth Amendment due process rights. Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant."
Here, Stevens knew about the deficient sample breath test on the Intoxilyzer 5000 before trial and was given the records pertaining to the Intoxilyzer 5000 and the deficient sample on the day of trial. "Evidence not disclosed to the defendant before trial is not suppressed or withheld by the State if the defendant has personal knowledge thereof, or if the facts become available to him during trial and he is not prejudiced in defending against these new facts. [Citations omitted.]" State v. Barncord, 240 Kan. 35, 43, 726 P.2d 1322 (1986). Defense counsel conceded that the deficient sample breath test had been an issue in the case before the State's disclosure of the documents. Stevens admitted that he was not prejudiced by the State's late disclosure of the printout containing his deficient sample breath test results.
Concerning the Intoxilyzer 5000 maintenance records, defense counsel contended that he was prejudiced because he was unable to call an expert to testify that all breath tests should be recorded in the log book. Nevertheless, during cross-examination, Sergeant David Roughton, who was the custodian of the Intoxilyzer 5000 maintenance records at the Pittsburg Police Department, testified that the officer performing Stevens' breath test was supposed to record it in the log book but failed to do so. An expert witness was unnecessary when the records custodian himself admitted that the officer administering the breath test failed to follow procedure. Defense counsel failed to establish that there was anything in the paperwork for the Intoxilyzer 5000 which might require further investigation to aid Stevens' defense.
We find no error in the trial court's decision to admit Stevens' breath test results into evidence.
Venue
Next, Stevens contends that there was insufficient evidence to support his conviction for driving or attempting to drive under the influence of alcohol because the State failed to prove that the crime was committed in Crawford County.
"'When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all of the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]" State v. Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005).
The jury was instructed that in order to find Stevens guilty of driving or attempting to drive under the influence of alcohol, the following elements must be proven: (1) that Stevens drove or attempted to drive a car; (2) that while driving or attempting to drive, Stevens was under the influence of alcohol to a degree that rendered him incapable of safely driving a car; and (3) that this act occurred on or about April 18, 2004, in Crawford County, Kansas. See PIK Crim. 3d § 70.01.
Generally,
"venue is a question of fact for the jury to determine in the trial of the case in chief. Venue may be established by proof of facts and circumstances introduced in evidence from which the place or places of commission of the crime or crimes may be fairly and reasonably inferred. [Citations omitted.]" State v. Pencek, 224 Kan. 725, 729, 585 P.2d 1052 (1978).
Citing State v. Jones, 204 Kan. 719, 466 P.2d 283 (1970), for the proposition that other competent evidence may be sufficient to establish venue of an offense, our Supreme Court in State v. Griffin, 210 Kan. 729, 731, 504 P.2d 150 (1972), stated:
"It is true that under the provisions of K.S.A. 1970 Supp. 22-2602 [now 1971 Supp.], prosecution must be had in the county where the crime was committed. This court has recognized on many occasions that the venue of an offense is jurisdictional, and it must be proved to establish the jurisdiction of the court. However, it is not necessary to prove the jurisdictional facts of venue by specific question and answer that the offense occurred in the particular county. It may be established by other competent evidence showing the offense was committed within the jurisdiction of the court."
In Jones, the defendant argued that the Ford County District Court lacked jurisdiction over the alleged crime of statutory rape because the evidence failed to establish venue of the offense in Ford County. Based upon the victim's testimony, the offense occurred after the defendant took her to the movies and then took her out to the country in his car. In rejecting the defendant's argument, our Supreme Court stated that venue was a question of fact for the jury. Our Supreme Court noted that the jury had been given an instruction which required it to find beyond a reasonable doubt that the act occurred within Ford County. Our Supreme Court stated that the jury, by its guilty verdict, had found from the evidence that the offense occurred in Ford County. In reviewing the evidence presented at trial, our Supreme Court looked at the fact that the defendant's family lived in Bucklin which was located in Ford County, that the children were taken to the movies in Bucklin before the alleged incident, and that there was no indication that the defendant drove an extended distance into the country when the alleged incident occurred. Our Supreme Court concluded: "Considering the entire record presented in this case, we cannot say the evidence upon which the jury based its finding was insufficient to sustain the finding that the offense was committed in Ford County." 204 Kan. at 724. Our Supreme Court determined that the Ford County District Court had jurisdiction over the crime. 204 Kan. at 723-24.
Our Supreme Court's decision in Jones is applicable to the instant case. Similar to Jones, there was sufficient evidence from which the jury could find that the offense occurred in Crawford County, the county where the case was tried. Officer Justice testified that he worked for the Pittsburg Police Department in Crawford County. While on patrol duty in Pittsburg on April 18, 2004, he received the dispatch to go to the residence at 118 West Madison concerning criminal trespass. Justice arrived at that location within minutes. Justice had worked on a case the day before concerning a criminal trespass by Stevens at that same location. Once Justice arrived at the location, he suspected that Stevens was intoxicated and, after gathering more evidence, arrested him. Stevens underwent breath testing at the Pittsburg Police Department.
Based on this evidence, the jury could fairly and reasonably infer that Stevens committed the crime in Crawford County. Because Justice worked for the Pittsburg Police Department which is located in Crawford County, the jury could infer that the residence to which Stevens was called was also located in Crawford County. There was no evidence that Justice had been dispatched outside of his jurisdiction to respond to a call concerning criminal trespass. Moreover, the fact that Justice arrested Stevens and took him to the police station for breath testing indicates that Justice encountered Stevens in Crawford County. Generally, Justice would not have had the authority to make an arrest as a law enforcement officer outside of his jurisdiction. See State v. Miller, 257 Kan. 844, 849, 896 P.2d 1069 (1995) ("[G]enerally a police officer acting within his official capacity cannot make an arrest outside the jurisdiction from which his authority is derived.").
In reviewing the evidence presented at trial, we find sufficient evidence to establish that Stevens committed the crime of driving or attempting to drive under the influence of alcohol in Crawford County.
Unanimous Jury Verdict
Next, Stevens asserts that the trial court erred in failing to require the State to elect either operating or attempting to operate as its theory of prosecution. Stevens maintains that he was deprived of his right to a unanimous jury verdict. An appellate court has unlimited review over issues involving juror unanimity. See State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005).
On the morning of trial, Stevens asked that the trial court require the State to elect whether it would proceed under the theory of driving under the influence of alcohol or attempting to drive under the influence of alcohol. The trial court determined that the State could proceed under both driving or attempting to drive under the influence of alcohol. In the jury instructions and in the verdict form, the trial court did not separate out "operating or attempting to operate." Instead, the jury was instructed as follows:
"The defendant is charged with the crime of operating or attempting to operate a vehicle while under the influence of alcohol. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. That the defendant drove or attempted to drive a vehicle;
"2. That the defendant, while driving or attempting to drive, was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle; and
"3. That this act occurred on or about the 18th day of April, 2004, in Crawford County, Kansas."
Stevens did not object to this instruction or to the jury verdict form.
Stevens contends that because the operation and attempted operation were not set out separately in the jury instructions and verdict form and the State was not required to elect one of these theories, there is no way to determine on which act the jury actually found him guilty. In making this argument, Stevens points out that the State presented evidence at trial to support both driving under the influence of alcohol and attempting to drive under the influence of alcohol.
Stevens' argument seems to suggest that this is a multiple acts case. "In multiple acts cases, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime." State v. Timley, 255 Kan. 286, Syl. ¶ 2, 875 P.2d 242 (1994). On the other hand, in an alternative means case, a single offense may be committed in more than one way. The jury m