State v. Johnson

1

NOT DESIGNATED FOR PUBLICATION

No. 110,837

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RHEUBEN JOHNSON,
Appellant.

MEMORANDUM OPINION

Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed October 13,
2017. Affirmed.

Rheuben Johnson, appellant pro se.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MCANANY, P.J., STANDRIDGE, J., and WALKER, S.J.

PER CURIAM: This is Rheuben Johnson's direct appeal from his conviction of two
counts of solicitation to commit the first-degree murder of his former wife, Annie
Johnson. The couple was married in 2005, and their son was born the following year.
They separated in October 2009 and were divorced in January 2012. The district court
apparently ordered primary placement of their child with Annie, and Johnson had
unsupervised parenting time which then changed to supervised parenting time. This
created ongoing conflicts between the parents.
2

During this period, Ronald Nodwell, who had recently been released from prison,
was looking for employment. A mutual friend recommended that Nodwell speak to
Johnson about working for Johnson's extermination company.

On April 15, 2012, Nodwell met Johnson at a Mr. Goodcents restaurant to talk
about the possibility of employment. At first, the conversation focused on employment,
but Johnson soon shifted the conversation to his ex-wife. Johnson told Nodwell that
Annie was "the root of all his problems, [explaining] how she was taking his son, his
money, his business, she was into weird things like Goth and vampires and addicted to
pain pills." Johnson said Annie was an unfit mother.

Johnson told Nodwell "it would be worth money if she would disappear. . . if she
was gone." Nodwell understood Johnson to mean "he wanted to kill her." Initially,
Nodwell thought Johnson was kidding, but the conversation continued to focus on Annie.
Johnson told Nodwell that he would pay him $20,000 "to make her go away."

After leaving the restaurant, Johnson drove Nodwell past Annie's apartment
complex to show Nodwell where she lived. Johnson told Nodwell that he could not get
into the gated apartment complex without a code. Johnson showed Nodwell that Annie
drove a black SUV. He drove Nodwell to the McDonald's restaurant where Annie
routinely stopped to get coffee before work, and he identified for Nodwell the hospital
where Annie worked. Johnson also told Nodwell the days his son was at daycare.

While they were in the truck together, Johnson gave Nodwell three suggestions
about how he could make Annie disappear. First, Johnson suggested that Annie was
addicted to pain pills, so Nodwell "could overdose her on her pain pills and [make it
look] like an accident." Second, Nodwell could burn down her apartment. Third, Nodwell
3

could catch Annie after getting coffee "and drive up beside her and shoot [her] in the
head on the way to work."

After this meeting, Johnson and Nodwell spoke several times on the phone. In
these conversations Nodwell wanted to talk to Johnson about employment, but Johnson
turned the discussion to Annie, leading Nodwell to conclude that Johnson was serious
about having his ex-wife killed. Nodwell told Johnson it would be stupid to make Annie
disappear because Johnson would be the prime suspect. From that point on, Johnson
became more cautious and "[e]very time he talked to me after that, he made it sound like
he was talking about a construction job or cleaning up glass. He made it sound like it was
something other than what it was."

On May 18, 2012, Nodwell contacted the Olathe Police Department and told
Detective Matt Campbell about his meeting with Johnson. The police decided to use an
undercover officer to make contact with Johnson. They asked Nodwell to call Johnson
and record the conversation. When Johnson did not answer, Nodwell left a message
which Johnson returned two days later.

Nodwell told Johnson that he did not have time to handle the situation, but he had
a friend that was willing, and asked Johnson if he'd be interested in meeting him. Johnson
agreed, and they made arrangements to meet the next day, May 22, 2012.

The meeting took place at Waterworks Park in Olathe. Johnson, Nodwell, and
Sergeant Lonnie Stites, an undercover police officer, were present. Stites was wearing a
transmitter and recording device. A recording of the conversation was later introduced
into evidence. Nodwell introduced Stites to Johnson and then left the meeting. Stites and
Johnson agreed that Stites would carry out Johnson's request for $10,000. Johnson
4

agreed to pay $3,000 as a down payment and the remaining $7,000 after the task was
completed.

During the course of the meeting, Johnson did not directly ask Stites to kill Annie,
but he verified that Nodwell had informed Stites on the details of what Johnson wanted
done. During the conversation, Johnson often referred to the job in terms of work. He told
Stites that he wanted some junk hauled off. An example of this is as follows:

"[Nodwell] kind of filled you in on what needs to be done. We can call it, you know, a
whole bunch of different projects. We can call it hauling off a bunch of old vans and
trucks that I've got in the back, or that'd be one . . . one project or remodeling, fixing up
the home could be another project."

Johnson told Stites that his life was going well except for the child custody issues,
so it was time to get these projects done. Johnson played for Stites a recording Johnson
had made of his son crying when he returned his son to Annie's home. Johnson told Stites
it would be nice to get "stuff cleaned up here" as soon as possible.

Johnson said he would be out of town from Wednesday until Monday and
suggested that would be a good time. Johnson said that nobody knows about the project
other than Nodwell, and it "would be nice to have everything cleaned up when I got
back." Stites understood that Johnson was talking in code about having his ex-wife
murdered.

Stites told Johnson, "when you talk about hauling trucks off or whatever I got a
general idea of what you're needing." Johnson responded that it would not be smart for
either one of them to go into more detail. Stites said that Nodwell had told him that
Johnson had a problem with his ex-wife. Johnson responded: "Yeah. Um, that is a
5

problem, um, be nice if I didn't have that problem. But nice if, uh, never had to deal with
her again." When Stites asked if Johnson wanted the project terminated, Johnson
responded: "'Of course, that's not why we're here today. I just want the van hauled off.'"

Stites agreed to $10,000 for the job, noting he would need pictures and addresses
where Annie could be found. Stites originally wanted to be paid $5,000 upfront because
this was "a unique problem to take care of," and if Stites did not get paid, "it's not like I
can take you to small claims court." Johnson expressed concern that if something
happened to Annie, he would be a suspect. Stites said: "That's the whole point of this
happening while you're out of town." Stites finally agreed to an initial payment of $3,000.

Stites wanted a second meeting so that Johnson could provide additional
information, including photographs of Annie and a map. When Stites called Johnson the
next day to set up the meeting, Johnson shifted his request to a request that Stites do
private detective work investigating Annie. Johnson gave Stites information such as the
vehicle Annie drove and her daily schedule but expressed concerns about being caught:

"I thought about it a whole lot and, you know, what I've really got to do is what's best for
my son, and if I don't do something stupid it's not really good for him and . . . if I don't
and . . . I go give somebody money and maps and pictures all at once, it really could be
easily misconstrued as . . . pretty bad intentions."

Johnson said he could give Stites pictures and maps, though he noted,

"giving somebody money and map and pictures could be . . . can you see how that can
look really really bad, I haven't quite figured out how to . . . how to . . . deal with that yet.
. . . I'm not sure if it's worth that much risk. . . . [T]o do that, no matter how much I want
to, I'd like to track and see where my wife is and no matter how much I'd like to get stuff
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hauled off or whatever I want to call it, . . . I just think I'd be putting myself in a world of
trouble."

Johnson said he wanted to make sure he did not say or do something that ended up
getting himself into a mess. Stites told Johnson that there were things he needed to know
and that he could not just "guess." Stites said that if Johnson was worried about the
picture, he could bring one to the meeting to show what Annie looked like, but Stites
would need the addresses and the money. Stites told Johnson he would rather talk further
in person rather than over the phone. Johnson told Stites that Annie would be bringing
their son to therapy later in the day, giving Stites the location, the time, and a description
of her vehicle. Stites again requested a meeting and asked Johnson to bring a picture that
he could at least see what she looked like. Johnson agreed to bring some family pictures
on his phone for Stites to see. Johnson identified for Stites the hospital where Annie
worked and gave Stites the address where Annie dropped off their son for supervised
visitation.

Johnson called Stites and cancelled their second meeting at the last minute. He
told Stites that he could not "say or do or insinuate anything that would be wrong doing"
because any conversation can be recorded. Johnson told Stites he needed "to get you on
as, like, an investigator that can kind of help out" and asked if Stites needed more detail
than that. Stites replied that Johnson could use whatever words that he wanted to use, but
that they both understood what Johnson was asking. Johnson replied: "Right."

Stites told Johnson that he was giving mixed signals, and he wanted to know if
Johnson wanted him to do the "original project." Johnson responded "probably," but he
needed to think about it some more. But he then concluded, "Yea. The goal is to solve the
problem."

7

Johnson agreed to pay the $3,000 down payment but suggested that he give Stites
the money in Missouri rather than in Kansas. But Stites told Johnson that he had a
problem going into Missouri because "they kind of want to talk to me over there, so I
don't go over there." Johnson insisted that he needed to give Stites the money in Missouri.
Stites agreed to meet Johnson at a Walmart store in Missouri.

When their second face-to-face meeting took place at the Walmart store, Johnson
gave Stites $3,000 in cash and a hand-drawn map that showed where Annie lived and
where Johnson had his supervised parenting time with his son. When Johnson showed
Stites a picture of Annie, Stites asked, "This is the vehicle you want to disappear?"
Johnson confirmed: "Yeah."

When Johnson gave Stites the map, he again discussed the vehicle that Annie
drove and Annie's schedule the next day. Johnson told Stites to be careful because Annie
could be armed, explaining that she was into drugs and associated with "drug people,
Goth people, vampire people." Johnson confirmed that once the job was done, he would
arrange to pay Stites the additional $7,000. Johnson told Stites that he did not want
anything to happen in front of his son.

Following this second meeting Johnson was arrested shortly after he crossed the
state line into Kansas. He was charged with solicitation to commit murder based on his
solicitation of Stites. The State later amended the complaint to include a second charge of
solicitation to commit murder based on his solicitation of Nodwell.

While awaiting trial, Johnson met Richard Porterfield in the Johnson County Adult
Detention Center where they both were being held. In March 2013, Johnson told
Porterfield that he worked in pest and animal control. Porterfield told Johnson that he did
not think he would be any good at pest control work. Johnson resplied, "You'd probably
8

be better at getting rid of humans." Porterfield, playing along, said: "Yeah, that's
probably more up my alley."

According to Porterfield, Johnson asked him if he would be interested in doing
something like that, more specifically "killing my wife." When Porterfield asked how
much Johnson would pay, Johnson responded: "$8 to $10,000." Johnson provided
Porterfield with details about his family. Johnson asked Porterfield how long he was
going to be in jail and expressed his hope that Porterfield would be released soon.

Porterfield testified that he received a plea deal from the State in exchange for his
testimony against Johnson. Porterfield admitted that his reason for bringing this
information to law enforcement was to get help in his own case.

After Porterfield disclosed his conversation with Johnson, the State amended the
complaint for a second time to include a count of solicitation to commit murder based on
Johnson's solicitation of Porterfield.

At trial, Johnson's girlfriend, Kathy Klostermann, testified for the defense. She
described Johnson's property, and the defense proffered pictures of junk and vehicles
around Johnson's property that needed to be removed. She testified that Johnson had
hired a private investigator to look into his wife's affairs but that the child custody and
divorce issues were improving at the time of Johnson's arrest.

The jury convicted Johnson solicitation to commit murder in the first degree with
respect to the Nodwell and Stites transactions. He was acquitted on the third charge
involving Porterfield.

9

Following the denial of Johnson's motion for a new trial, Johnson was sentenced
to a controlling term of 132 months in prison. Johnson's appeal of his convictions brings
the matter to us for review.

Constitutionality of Criminal Solicitation Statute

Johnson challenges the constitutionality of our criminal solicitation statute on the
grounds of vagueness. K.S.A. 2016 Supp. 21-5303(a) states: "Criminal solicitation is
commanding, encouraging or requesting another person to commit a felony, attempt to
commit a felony or aid and abet in the commission or attempted commission of a felony
for the purpose of promoting or facilitating the felony."

Johnson did not raise this issue before the district court. Generally, an appellant
may not raise a constitutional issue for the first time on appeal. State v. Godfrey, 301
Kan. 1041, 1043, 350 P.3d 1068 (2015). But because Johnson's argument is that the
statute is unconstitutional on its face, rather than as applied to him, the issue before us is
a legal issue that does not require any findings of fact. Accordingly, we can consider this
claim for the first time on appeal. See State v. Atteberry, 44 Kan. App. 2d 478, 492, 239
P.3d 857 (2010).

Our review of this issue is unlimited. State v. Bollinger, 302 Kan. 309, 318, 352
P.3d 1003 (2015), cert. denied 136 S. Ct. 858 (2016). In reviewing the criminal
solicitation statute, we presume the statute is constitutional and resolve all doubts in favor
of its validity. We must interpret the statute in a way that makes it constitutional if there
is any reasonable construction that will maintain the legislature's apparent intent. See
State v. Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127 (2016).

10

In resolving this constitutional challenge, we first determine whether the statute
gives adequate warning of the proscribed conduct. The statute is unconstitutionally vague
if it does not provide a person of ordinary intelligence with fair notice of what is
prohibited. Next, we determine whether the statute adequately guards against arbitrary
and unreasonable enforcement. Bollinger, 302 Kan. at 318.

Vagueness: Lack of Objective Standards

Unconstitutional vagueness arises when persons of common intelligence must
guess at a statute's meaning and may differ as to its application. See City of Lincoln
Center v. Farmway Co-Op, Inc., 298 Kan. 540, 545, 316 P.3d 707 (2013). But a statute is
not unconstitutionally vague if its words are commonly used, are judicially defined, or
have a settled meaning in law. City of Wichita v. Hackett, 275 Kan. 848, 853-54, 69 P.3d
621 (2003).

Johnson's argument focuses on the absence of any definition for the term
"encouraging" as used in the statute. He does not raise this vagueness argument with
respect to the terms "commanding" and "requesting" found in the statute. See K.S.A.
2016 Supp. 21-3303(a).

Johnson claims the word "encouraging" lacks an objective standard in that it
requires "an inquiry into the mental state of the person solicited." He posits that based on
the subjective interpretation of the reader, Jonathan Swift would be liable for prosecution
for hundreds of counts of solicitation of murder under K.S.A. 2016 Supp. 21-5303 for the
language used in his satirical essay, A Modest Proposal (1729), in which he advocated for
cannibalism of babies as a means of population control.

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But Black's Law Dictionary defines "encourage" as: "To instigate; to incite to
action; to embolden; to help." Black's Law Dictionary 644 (10th ed. 2014). This
definition is not predicated on the mental state of the person solicited. Jonathan Swift
would have nothing to fear from publishing his essay in Kansas.

Johnson cites our Supreme Court's decisions in State v. Bryan, 259 Kan. 143, 910
P.2d 212 (1996), and State v. Kirby, 222 Kan. 1, 9-10, 563 P.2d 408 (1977), for support.
In Bryan the court examined the words "alarms," "annoys," and "harasses" and found
them to be unconstitutionally vague because the statute did not contain a definition or
objective standard to measure the prohibited conduct. 259 Kan. at 149. The court found
that those terms were subject to a wide variety of interpretations and were thus dependent
upon the subjective feelings of the victims. 259 Kan. at 149-50. In Kirby the court found
the term "endangering of life" was vague within the meaning of the statute. The court
noted there was no universally accepted definition of "endangering of life," and the
definition of the phrase was a matter of speculation. 222 Kan. at 10.

Bryan does not control. As noted earlier, the definition of "encourage" does not
include any element related to any mental state of the person solicited. In fact, under
K.S.A. 2016 Supp. 21-5303(b), "[i]t is immaterial under subsection (a) that the actor fails
to communicate with the person solicited to commit a felony if the person's conduct was
designed to effect a communication." The word "encouraging" is a common term, plainly
stated and easily understood, and is not dependent to the subjective feelings of the
victims, as was the case in Bryan. In our case, the defendant's conduct—rather than the
subjective understanding of the person solicited— is the standard for determining
whether the crime has been committed.

Unlike Kirby, in which there was no universally accepted definition of the phrase
"endangering of life," we have a clear, easily understood, and universally accepted
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definition of the verb "encourage." A person of common intelligence is adequately
notified of the prohibited conduct under our criminal solicitation statute. The language in
the statute is clear and unambiguous.

In Edmondson v. Pearce, 91 P.3d 605, 631-32 (Okla. 2004), the Oklahoma
Supreme Court found that the word "encourages" in the phrase "willfully instigates or
encourages any cockfight" was not unconstitutionally vague because a person of ordinary
intelligence could understand it and has fair notice of what conduct is prohibited. See also
State v. Todd, 468 N.W.2d 462, 465-66 (Iowa 1991).

Johnson argues that there is no distinction between encouraging under the statute
and protected free speech. But the court in Edmondson rejected a similar argument that
the language of the cockfighting statute infringed upon First Amendment rights because
"communication which incites the imminent lawless action of cockfighting does not
constitute protected speech." 91 P.3d at 633.

A common person can understand the terms "commanding, encouraging, or
requesting" without any definitions in the statute. K.S.A. 2016 Supp. 21-5303 does not
contain terms that are confusing or susceptible to ambiguous or differing meanings. Thus,
Johnson fails to demonstrate that the language in K.S.A. 2016 Supp. 21-5303 provides
inadequate notification of the proscribed conduct.

Vagueness: Subject to Arbitrary and Discriminatory Enforcement

Johnson argues that the statute's language fails the precision necessary to protect
against arbitrary and discriminatory enforcement. A statute is unconstitutionally vague if
it fails to protect against arbitrary and discriminatory action by those responsible for
enforcing it. Bollinger, 302 Kan. at 318.
13


Johnson relies on Thelen v. State, 272 Ga. 81, 82 526 S.E.2d 60 (2000), in which
the court examined a noise ordinance and found that prohibiting unnecessary or unusual
sound or noise which annoys others fails to clearly identify the prohibited conduct
because whether a noise is unnecessary, unusual, or annoying to others depends on the
listener. But in our present case, as we explained earlier in this opinion, there are no
subjective elements included in K.S.A. 2016 Supp. 21-5303.

Johnson claims the statute allows a prosecution even though "real innocent
explanations exist." He cites State v. Adams, 254 Kan. 436, 866 P.2d 1017 (1994); Smith
v. Fairmont, 196 Kan. 73, 410 P.2d 73 (1966); and People v. McCaughan, 49 Cal. 2d 409
317 P.2d 974 (1957). But he provides no argument as to how these cases support his
position.

Johnson also argues that K.S.A. 2016 Supp. 21-5303 is vague because it does not
require corroborating evidence. He claims a requirement of corroborating evidence, such
as required in Colorado (Colo. Rev. Stat. § 18-2-301[1] [1998]) and Texas (Tex. Penal
Code Ann. § 15.03[b] [1994]), would remedy the problem that allows convictions based
on the subjective interpretation of the person allegedly solicited. But, as demonstrated
above, a conviction under our criminal solicitation statute is not dependent upon the
mental state of the person solicited.

The language of K.S.A. 2016 Supp. 21-5303 gives fair warning of the proscribed
conduct and adequately guards against arbitrary and unreasonable enforcement. It is not
unconstitutionally vague on its face.

14

Vagueness: Unconstitutionally Overbroad

Johnson also asserts that K.S.A. 2016 Supp. 21-5303 is overbroad because it
infringes upon his First Amendment right to free speech; does not contain an element
requiring "imminent" conduct; and by prohibiting speech that encourages action, the
statute does not use the least restrictive means to accomplish the goals of the statute.

A statute is facially invalid if it prohibits a substantial amount of protected speech.
United States v. Williams, 553 U.S. 285, 292, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008).
"An overbroad statute makes conduct punishable which under some circumstances is
constitutionally protected." Dissmeyer v. State, 292 Kan. 37, 40, 249 P.3d 444 (2011).
For an overbreadth argument to succeed, a defendant must establish that (1) the protected
activity is a significant part of the law's target, and (2) there exists no satisfactory method
of severing that law's constitutional from its unconstitutional application.

As noted earlier, K.S.A. 2016 Supp. 21-5303(a) prohibits "commanding,
encouraging or requesting another person to commit a felony, attempt to commit a felony
or aid and abet in the commission to attempted commission of a felony for the purpose of
promoting or facilitating the felony."

Johnson argues that the solicitation statute is overbroad because it violates his free
speech rights. But "[d]espite our First Amendment rights, we are not free to harm others
under the guise of free speech." State v. Whitesell, 270 Kan. 259, 271, 13 P.3d 887
(2000).

"'"'[T]he goal of the First Amendment is to protect expression that engages in some
fashion in public dialogue, that is "'communication in which the participants seek to
persuade, or are persuaded; communication which is about changing or maintaining
15

beliefs, or taking or refusing to take action on the basis of one's beliefs.'" [Citations
omitted.]' . . . A statute that is otherwise valid, and is not aimed at protected expression,
does not conflict with the First Amendment simply because the statute can be violated by
the use of spoken words or other expressive activity."' [Citations omitted.]" Whitesell,
270 Kan. at 271-72.

Our Supreme Court has repeatedly held that "expressive activity may be
prohibited if it 'involves substantial disorder or invasions of the rights of others. . . .
[Thus] violence or other types of potentially expressive activities that produce special
harms distinct from their communicative impact . . . are entitled to no constitutional
protection.'" Whitesell, 270 Kan. at 272 (quoting Champagne v. Gintick, 871 F. Supp.
1527, 1534 [D. Conn. 1994]). Johnson fails to explain how the State intervening in his
efforts to have his ex-wife murdered interferes with his free speech rights under the First
Amendment. K.S.A. 2016 Supp. 21-5303(a) does not violate Johnson's free speech rights.

With regard to Johnson's "imminence" argument, he fails to explain how a statute
is overbroad if it does not specify that the criminal action being solicited, such as his
murder-for-hire scheme, must be executed within some specified time period.

With regard to the argument that the statute does not use the least restrictive means
to accomplish its goals, Johnson fails to adequately explain how the use of the word
"encouraging" is unreasonably restrictive and that the use of the words "commanding"
and "requesting" would suffice to achieve the statute's goal.

K.S.A. 2016 Supp. 21-5303 is not unconstitutionally overbroad.

16

Multiplicity

Multiplicity is charging a single offense in several counts, creating the potential
for multiple punishments for a single offense in violation of the Double Jeopardy Clause
of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas
Constitution Bill of Rights. State v. King, 297 Kan. 955, 970, 305 P.3d 641 (2013). See
State v. Overman, 301 Kan. 704, Syl. ¶ 4, 348 P.3d 516 (2015); State v. Schoonover, 281
Kan. 453, 475, 133 P.3d 48 (2006).

Johnson claims his convictions are multiplicitous because the State's evidence
showed a single ongoing attempt to hire first Nodwell and then Stites to murder his ex-
wife. Multiplicity is an issue of law subject to unlimited review. State v. Belt, 305 Kan.
381, 407, 381 P.3d 473 (2016). We may address the issue of multiplicity for the first time
on appeal in order to serve the ends of justice and prevent a denial of fundamental rights.
State v. Weber, 297 Kan. 805, 809, 304 P.3d 1262 (2013).

The key inquiries in resolving a multiplicity claim are whether the convictions
arise from the same conduct and whether, by statutory definition, there are two offenses
or just one. King, 297 Kan. at 970. In determining whether a conviction arose from the
same conduct, we consider four factors: (1) whether the acts occurred at or near the same
time; (2) whether the acts occurred at the same location; (3) whether there is a causal
relationship between the acts as opposed to there being an intervening event; and (4)
whether a fresh impulse motivated some of the conduct. State v. Pribble, 304 Kan. 824,
Syl. ¶ 3, 375 P.3d 966 (2016).

Johnson cites several cases that involve the grouping of solicitation charges for the
purposes of sentencing, but the cases cited do not hold that the convictions themselves
are multiplicitous. See e.g., United States v. Wilson, 920 F.2d 1290, 1293 (6th Cir. 1990).
17

Johnson was charged with soliciting Nodwell, Stites, and Porterfield to murder
Annie. He was convicted of soliciting Nodwell and Stites but acquitted on the charge
relating to Porterfield. The convictions on the charges relating to Nodwell and Stites were
not multiplicitous. They covered conduct in separate periods of time. They involved
different individuals. The solicitations occurred at different locations. The solicitation of
Stites occurred after the intervening event of Nodwell withdrawing from the plan. The
State relied on separate evidence in proving each charge. Each of these charges
constitutes a separate and distinct unit of prosecution. They are not multiplicitous.

Sufficiency of the Evidence

Johnson contends that the evidence presented at trial was insufficient to support
his convictions because (1) the State relied on stacked inferences to support the
conviction; (2) the State failed to prove sufficient evidence of imminence; (3) the
evidence amounted to nothing more than discussions; (4) there was insufficient evidence
that Johnson was the solicitor; (5) the State's case was based entirely on innuendo; (6)
Stites' understanding of Johnson's request was based on impressions he received from
Nodwell; and (7) the State failed to prove Johnson's specific intent. Johnson fails to
provide adequate argument to support many of his contentions, but we will address each
in turn.

In considering the sufficiency of the evidence to support a conviction, we view the
evidence in a light favoring the State to determine whether a rational fact-finder could
have found the defendant guilty beyond a reasonable doubt. State v. Laborde, 303 Kan. 1,
6, 360 P.3d 1080 (2015). In doing so, we do not reweigh the evidence or assess the
credibility of witnesses. State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016).

18

There is no distinction between direct and circumstantial evidence in terms of
probative value. State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014). A verdict
may be supported by circumstantial evidence if such evidence provides a basis from
which the fact-finder may reasonably infer the existence of the fact in issue. The evidence
need not exclude every other reasonable conclusion or inference. State v. Logsdon, 304
Kan. 3, 25, 371 P.3d 836 (2016). Circumstantial evidence used to infer guilt must be
proved and cannot be inferred or presumed from other circumstances. State v.
Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009).

Johnson cites caselaw regarding stacked inferences, but he provides no argument
regarding its application to this case. He fails to show how his convictions relied on
stacked inferences.

Next, Johnson claims that there is insufficient evidence of imminence. By this, he
apparently claims the State had to prove that he solicited Nodwell and Stites to
immediately murder his ex-wife. The statute makes no reference to imminence. Johnson
cites Brandenburg v. Ohio, 395 U.S. 444, 449, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969),
in which the court held that the Ohio Criminal Syndicalism Act was unconstitutional
because it "purports to punish mere advocacy" and to forbid "assembly with others
merely to advocate the described type of action." This has nothing to do with the
sufficiency of the evidence. Besides, the crime is the solicitation, which is not predicated
on the efficacy of the person solicited to carry out the plan.

Next, Johnson claims the evidence shows that he never went beyond mere
discussion, and the State failed to prove that he crossed the threshold from mere
discussion to action. He cites State v. Gains, 431 So. 2d 736 (Fla. 1983), for the
proposition that serious discussions without a decision to proceed is insufficient. But
here, there was ample evidence that Johnson went beyond mere discussion. With respect
19

to Nodwell, Johnson offered him money, provided details that would help Nodwell
accomplish the murder, and suggested different scenarios for committing the crime. With
respect to Stites, Johnson actually delivered the down payment to Stites for the crime. We
reject Johnson's argument on this point.

Next, Johnson claims there is insufficient evidence that he was the solicitor. He
relies on People v. Salazar, 140 Mich. App. 137, 362 N.W.2d 913 (1985), in which the
informant did the soliciting and the defendant only responded to the informant's
solicitations. But viewing the evidence as a whole, it is clear that Johnson solicited
Nodwell and Stites to kill Annie. Neither Nodwell nor Stites sought out Johnson to see if
he was interested in having his ex-wife murdered.

Next, Johnson argues there is insufficient evidence because the entire case is based
on innuendo. For support, Johnson points to Stites' preliminary hearing testimony that
Johnson never directly asked Stites to kill his ex-wife. But Johnson ignores the testimony
the jury heard at trial. There was more than enough testimony, both direct and
circumstantial, to support the jury's verdicts without resorting to any innuendo.

Next, Johnson refers to the testimony about him telling Stites that he had a van
that needed to be hauled off. Johnson's argument is unclear, but he seems to be claiming
that Stites had a preconceived notion of what Johnson was requesting, which led to a
misinterpretation of Johnson's request. Again, this is a question for the jury. It was the
jury's role to determine what Johnson was requesting and weigh the credibility of the
witnesses. The jury had ample evidence with which to see through Johnson's thinly coded
statements that made clear his intent to hire someone to murder his ex-wife.

Next, Johnson claims the evidence at trial was insufficient to establish that even if
he solicited Nodwell or Stites, he did so with the specific intent that one of them murder
20

Annie. Once again Johnson cites his coded statements to Nodwell and Stites which were
not only easily seen through by Nodwell and Stites but also by the jury in determining
Johnson's intent to have his ex-wife murdered. There was ample evidence that Johnson
intended Nodwell, and then Stites, to murder Annie.

Finally, Johnson points to the definition of "murder in in the first degree" in the
jury instructions and asserts that there was no evidence that he killed Annie, as she was
not murdered. But solicitation to commit murder does not require that the solicited crime
be completed. Our Supreme Court has stated that the crime of solicitation "is complete
when the person communicates the solicitation to another with the requisite mens rea. No
act in furtherance of the target crime needs to be performed by either person." State v.
DePriest, 258 Kan. 596, 604, 907 P.2d 868 (1995).

There was more than ample evidence to support Johnson's convictions.

Jury Instruction: Affirmative Defense of Renunciation

Johnson claims the district court erred in advising the jury about the law of
renunciation in Jury Instruction Nos. 16 and 17 by replacing the terms "manifesting,"
"renunciation," and "purpose," with the terms "demonstrating," "abandonment," and
"plan."

The protocol for reviewing jury instructions on appeal is well known to the parties
and can be found in State v. Fisher, 304 Kan. 242, 256-57, 373 P.3d 78 (2016).

Jury Instruction Nos. 16 and 17 were appropriate, as they correctly stated the law
on renunciation and were consistent with K.S.A. 2016 Supp. 21-5303(c) and PIK Crim.
4th 53.100 (2013 Supp.) and 51.050 (2013 Supp.). Besides, if there had been any error in
21

these instructions, the rule against invited error would apply. Jury Instruction Nos. 16 and
17 were given exactly as requested by Johnson. The invited error doctrine "effectively
binds trial counsel to strategic decisions inducing judicial rulings with the purpose of
obtaining favorable judgments for their clients." State v. Hargove, 48 Kan. App. 2d 522,
532, 293 P.3d 787 (2013). A litigant may not invite error and then complain of the error
on appeal. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014).

This claim of error fails.

Sufficiency of Evidence to Disprove Defense of Renunciation

Jury Instruction No. 16 stated: "It is a defense to a charge of criminal solicitation
that the defendant, after soliciting another person to commit a felony, persuaded that
person not to do so or otherwise prevented the commission of the felony, under
circumstances demonstrating a complete and voluntary abandonment of the defendant's
criminal plan."

Jury Instruction No. 17 stated: "The defendant raises abandonment as a defense.
Evidence in support of this defense should be considered by you in determining whether
the State has met its burden of proving that the defendant is guilty. The State's burden of
proof does not shift to the defendant."

Johnson claims that the State failed to disprove that Johnson persuaded or
prevented Nodwell and Stites from murdering his ex-wife.

As noted in Instruction No. 17, Johnson did not bear the burden of proving his
defense of abandonment; it was the State's burden to disprove this defense. See K.S.A.
22

2016 Supp. 21-5108(c); State v. Staten, 304 Kan. 957, 965, 377 P.3d 427 (2016); State v.
Bethel, 275 Kan. 456, 474, 66 P.3d 840 (2003).

Johnson's brief second thoughts about going forward with this murder-for-hire plot
were based on his fear of getting caught. But there is no evidence that he decided to
abandon the plan and tried to prevent Nodwell or Stites from going forward. Rather, he
simply shifted his communications to the use of code words to thinly disguise his true
intent. There is no evidence that he manifested "a complete and voluntary renunciation of
[his] criminal purposes." K.S.A. 2016 Supp. 21-5303(c). Thus, if there was any error at
all, it was the district court giving an instruction on Johnson's claimed abandonment of
the plan when there is no evidence that he did, in fact, abandon the plan. The State
presented substantial evidence from which a rational fact-finder could conclude that
Johnson never abandoned the plan of soliciting Annie's murder.

Jury Instruction: Jurisdiction and Venue

The court instructed the jury in Jury Instruction No. 18 as follows:

"If you find that the defendant committed criminal acts in this state which were a
substantial and integral part of an overall continuing crime plan, and which were clearly
in partial execution of that plan, the prosecution may be in this state or any other state in
which such acts occur."

Johnson objected to this jury instruction on the basis that it was not a PIK
instruction and because he claimed there was no evidence that the solicitation continued
from Kansas to Missouri. Now, on appeal, he appears to be arguing that the instruction
failed to inform the jury that it must find that the crime occurred in Johnson County.

23

As noted, we follow the protocol set forth in State v. Fisher, 304 Kan. at 256-57 in
reviewing the district court's jury instructions. Further, when an objection to a jury
instruction at trial is different from the argument presented on appeal, any error should be
reversed only if giving the instruction was clearly erroneous. State v. Williams, 295 Kan.
506, 510, 286 P.3d 195 (2012); State v. Ellmaker, 289 Kan. 1132, Syl. ¶ 1, 221 P.3d 1105
(2009).

K.S.A. 2016 Supp. 21-5106 provides: "A person is subject to prosecution and
punishment under the law of this state if: (1) The person commits a crime wholly or
partly within this state." K.S.A. 2016 Supp. 21-5106(b) provides that a crime is partly
committed within this state if: "(1) An act which is a constituent and material element of
the offense; (2) an act which is a substantial and integral part of an overall continuing
criminal plan; or (3) the proximate result of such act, occurs within the state."

Jury Instruction No. 18 was a proper statement of Kansas law. See State v.
Grissom, 251 Kan. 851, 886-87, 840 P.2d 1142 (1992). Johnson argues that the
instruction should have informed the jury that the crime occurred in Johnson County, not
in the state. But Jury Instruction No. 18 related to the authority of the State to prosecute
Johnson for the crime in Kansas. The instruction containing the elements of the crime
included the requirement that the State prove that the crime occurred in Johnson County.
The elements instructions accomplished the task of advising the jury that it must find that
the crime occurred in Johnson County. We find no error in the court giving Jury
Instruction No. 18.

Kansas Jurisdiction when Evidence Obtained in Missouri

With respect to the solicitation of Stites, Johnson claims that the Olathe Police
Department illegally exercised its powers outside of its jurisdiction under K.S.A. 2016
24

Supp. 22-2401a by conducting an investigation and obtaining evidence in Kansas City,
Missouri. Johnson relies on State v. Vrable, 49 Kan. App. 2d 61, 305 P.3d 35 (2013), in
which the district court suppressed evidence obtained outside of the jurisdiction of the
police who conducted a controlled drug buy. Our Supreme Court held there was no
proper request for assistance that would have extended the territorial limits of the police
under K.S.A. 2014 Supp. 22-2401a(2)(b).

Here, Johnson claims Stites had no authority to exercise his police powers in
Missouri. But Johnson did not move to suppress the evidence obtained. The evidence was
admitted at trial without this objection being asserted. K.S.A. 60-404 generally precludes
an appellate court from reviewing an evidentiary challenge absent a timely and specific
objection. State v. Dupree, 304 Kan. 43, 62, 371 P.3d 862 (2016). Johnson cites no
applicable exception to this rule.

As a second argument, Johnson contends that his conduct was not a crime in
Missouri. Whether his conduct was a crime in Missouri is irrelevant. K.S.A. 2016 Supp.
21-5106 controls, and it allows for the prosecution in Kansas when "the person commits a
crime wholly or partly within this state." See K.S.A. 2016 Supp. 21-5106(a)(1). Here,
part of the crime occurred in Kansas. Johnson's jurisdictional arguments are without
merit.

Alternative Means

Johnson claims he was charged with alternative means of committing the crime of
solicitation because the jury was instructed it could convict him of the crime if it found
that he "encouraged or requested" another to commit the crime of first-degree murder.

25

Once again, the invited error doctrine applies to bar this claim because Johnson's
proposed jury instruction informed the jury that it could convict Johnson if it found that
he "intentionally encouraged or requested" another person to commit first-degree murder.
See State v. Schreiner, 46 Kan. App. 2d 778, 791, 264 P.3d 1033 (2011) (applying the
invited error doctrine to an alternative means claim).

Language in Complaint

Finally, Johnson claims the complaint was defective because it used the words
"encouraged" and "requested" rather than "encouraging" and requesting."

State v. Dunn, 304 Kan. 773, 811, 814, 375 P.3d 332 (2015), recognizes the
following three types of charging document defects. First, when it does not show that the
charges are being filed in the correct court and territory. Second, when it does not allege
facts which, if proved beyond a reasonable doubt, show the commission of a Kansas
crime. Third, when it does not provide adequate notice of the charges.

Here, Johnson alleges that the complaint did not set out the essential elements of
the crime. But Dunn only requires the complaint to contain all essential facts of the crime
charged drawn in the language of the statute. Johnson does not contend the complaint left
out essential facts.

K.S.A. 2016 Supp. 21-5303 states: "Criminal solicitation is commanding,
encouraging or requesting another person to commit a felony, attempt to commit a felony
or aid and abet in the commission or attempted commission of a felony for the purpose of
promoting or facilitating the felony." Johnson seems to contend that the complaint must
charge the defendant using the gerunds used in the statute as opposed to using the past
tense of the verb form to indicate criminal conduct which occurred in the past but within
26

the applicable statute of limitations. We reject such a frivolous notion. The complaint
adequately contains the facts which, if proved beyond a reasonable doubt, show that
Johnson committed criminal solicitation, and he was provided adequate notice of the
charges.

Affirmed.