State v. Tyree

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NOT DESIGNATED FOR PUBLICATION

No. 107,939

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DARNELL LAMONT TYREE,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed March 4, 2016.
Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin and Kyle Edelman, assistant district attorneys, Chadwick J. Taylor, district attorney,
and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., LEBEN and POWELL, JJ.

Per Curiam: A jury found Tyree guilty of aggravated robbery and aggravated
battery. He now appeals his convictions, arguing (1) aggravated robbery is an alternative
means crime and because there was no evidence to support the robbery being
accomplished by force, Tyree's conviction of aggravated robbery must be overturned; and
(2) there was not sufficient evidence to support his convictions of aggravated battery and
aggravated robbery. We disagree and affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

On January 11, 2008, Robert Lewis and his girlfriend Felicia Hinkle went to a
Topeka bar to play in a poker tournament. Lewis and Hinkle heavily drank alcohol while
at the bar. Lewis won approximately $1,500 playing poker and was vocal about his
winnings to the other patrons at the bar. Before leaving, he gave approximately $1,000 to
Hinkle. Lewis and Hinkle left the bar separately; Lewis went to a friend's house and
stayed there for 20-30 minutes.

Sometime after 2 a.m. the next day, Lewis and Hinkle returned to their Topeka
residence in separate vehicles. At about the same time a dark-colored SUV pulled up
outside of the residence, and Darnell Tyree, whom Lewis knew, got out and approached
Lewis. Three other individuals remained in the SUV. While Lewis and Tyree were
speaking, Hinkle took Lewis' house keys and entered the house with a group of her
friends through the back door.

Tyree asked Lewis if he had a gun on him; Lewis replied he did not. Tyree then
drew a pistol and asked Lewis for the money he had won. Lewis handed Tyree the money
he had on his person, prompting Tyree to ask for Lewis' jacket, which Lewis handed
over. At trial, Lewis testified that he would not have given Tyree the money had Tyree
not pointed a gun at him and that he was scared he was going to be shot.

Tyree told Lewis he knew Lewis had more money and started walking towards
Lewis' residence. In an effort to draw Tyree away from the house, Lewis began to run in
the opposite direction. He testified that he heard a gunshot almost immediately after
starting to run and felt his right side go limp.

Hinkle testified she witnessed Tyree and Lewis talking on the street through a
house window as she passed by on her way to her room. After she passed the window,
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she heard a gunshot. Hinkle returned to the window and saw Tyree get into the SUV,
which then drove off without its headlights on.

At 2:39 a.m., Topeka Police Officers Chris Bowers and Scott McEntire received a
call from dispatch regarding a shooting in the 1700 block of Southeast 6th Street. As the
officers arrived on the scene, they saw Lewis attempting to flag them down. The officers
noticed Lewis was bleeding from his back from a wound that appeared consistent with a
gunshot wound. Lewis also appeared to be in shock, and the officers began to administer
first aid. As the officers administered aid, Lewis told the officers that Tyree robbed and
shot him.

Lewis was transported to the hospital where Officer Ronnie Connell spoke with
Lewis in the emergency room. Connell testified that Lewis informed him that Tyree had
robbed him and shot him in the back. Detective Karim Hazim attempted to get a full
statement from Lewis, but Hazim was unsuccessful because Lewis was on medication.
However, when Hazim asked if Tyree had shot Lewis, Lewis nodded his head up and
down, which Hazim perceived to be an affirmative answer.

After Lewis was released from the hospital, Hazim interviewed Lewis at his
mother's house. During this interview, Lewis told Hazim that he felt threatened by Tyree.
Lewis then told Hazim that Tyree robbed him and he believed Tyree shot him as he ran
away. Lewis initialed and dated a photo of Tyree. Next to this he wrote: "He shot me."

Tyree was charged with aggravated robbery pursuant to K.S.A. 21-3427, a
severity level 3 person felony; aggravated battery pursuant to K.S.A. 21-3414(a)(1)(B)
(intentional bodily harm with a deadly weapon), a severity level 7 person felony; and
criminal possession of a firearm pursuant to K.S.A. 21-4204(a)(4)(B), a severity level 8
nonperson felony. The State dismissed the charge of criminal possession of a firearm at
trial.
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After a mistrial, the jury convicted Tyree in the second trial of aggravated robbery
and aggravated battery as charged. The district court sentenced him to 246 months'
imprisonment with 36 months' postrelease supervision.

Tyree timely appeals.

DOES THE LANGUAGE "BY FORCE OR THREAT OF BODILY HARM" INCORPORATED BY
REFERENCE IN K.S.A. 21-3427 RAISE AN ALTERNATIVE MEANS ISSUE?

Tyree first contends the phrase "threat of bodily harm to Robert Lewis or force" as
stated in the jury instructions establishes two alternative means of committing the crime
of aggravated robbery. He also argues that because the State presented insufficient
evidence to establish he took property from Lewis by force, his conviction for aggravated
robbery must be reversed due to a lack of evidence to support the alternative means of
committing aggravated robbery by force. As this question requires our interpretation and
application of the aggravated robbery statute, our standard of review is unlimited. See
State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).

Juries in criminal cases must reach a unanimous verdict. K.S.A. 22-3421. "When
the jury is presented with alternative means by which the crime charged can be
committed, it is possible for some jurors to arrive at one alternative means to support a
conviction and other jurors to settle on another alternative means." State v. Edwards, 48
Kan. App. 2d 383, 400, 290 P.3d 661 (2012), aff'd 299 Kan. 1088, 327 P.3d 469 (2014).
"'[W]here a single offense may be committed in more than one way, there must be jury
unanimity as to guilt for the single crime charged. Unanimity is not required, however, as
to the means by which the crime was committed so long as substantial evidence supports
each alternative means.'" State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994)
(quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]). Reversal of the
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conviction is required if there is inadequate evidence to support a particular means for
committing the crime of conviction. See State v. Wright, 290 Kan. 194, 203, 224 P.3d
1159 (2010), disapproved on other grounds by State v. Brooks, 298 Kan. 672, 683-84,
317 P.3d 54 (2014).

Therefore, our first task is to determine whether the aggravated robbery statute
truly presents alternative means by which the crime can be committed. If aggravated
robbery is not an alternative means crime, then jury unanimity is not at issue and an
alternative means analysis is inapplicable.

K.S.A. 21-3427 defines aggravated robbery as "a robbery, as defined in K.S.A. 21-
3426 and amendments thereto, committed by a person who is armed with a dangerous
weapon or who inflicts bodily harm upon any person in the course of such robbery."
Robbery is defined in K.S.A. 21-3426 as "the taking of property from the person or
presence of another by force or by threat of bodily harm to any person."

In support of his argument that "by force or by threat of bodily harm" implicates
an alternative means analysis, Tyree relies on State v. Reed, 45 Kan. App. 2d 372, 385,
247 P.3d 1074, rev. denied 292 Kan. 968 (2011), which held this language raises an
alternative means issue. Tyree's reliance on Reed is misplaced, however, because it
predates this court's alternative means analysis since the Kansas Supreme Court decided
State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012). In Brown, our Supreme Court held
that statutory language describing "options within a means" or the "factual circumstance"
which prove the underlying crime does not raise an alternative means issue. 295 Kan.
181, Syl. ¶¶ 10, 11.

Since the Brown holding, other panels of this court have held the language "by
force or by threat of bodily harm" does not raise an alternative means issue. See State v.
Cato-Perry, 50 Kan. App. 2d 623, 628, 332 P.3d 191 (2014), rev. denied 302 Kan. ___
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(August 20, 2015); State v. Barnett, No. 106,133, 2013 WL 4729219, at *5 (Kan. App.
2013), rev. denied 299 Kan. 1271 (2014); State v. Henderson, No. 107,193, 2013 WL
3970170, at *3 (Kan. App. 2013), rev. denied 299 Kan. 1272 (2014); State v. Dewberry,
No. 106,701, 2013 WL 2321039, at *11 (Kan. App. 2013); State v. Moore, No. 106,209,
2013 WL 1010284, at *4-5 (Kan. App.), rev. denied 297 Kan. 1253 (2013). Bolstering
the holdings in these cases is the fact that the Kansas Supreme Court has held the
language "'force, threat, or deception'" in the kidnapping statute—language similar to that
in the aggravated battery statute—does not raise an alternative means issue. See State v.
Haberlein, 296 Kan. 195, Syl. ¶ 2, 290 P.3d 640 (2012), cert. denied 134 S. Ct. 148
(2013).

In Cato-Perry, 50 Kan. App. 2d at 628, our court explained that "the words by
force or by threat of bodily harm are merely different options or means of compelling the
taking of someone else's property, the focus of the crime of robbery." We agree and hold
that the phrase "by force or by threat of bodily harm" are simply options within a means
or factual circumstances by which the crime of aggravated battery may be committed.
Therefore, no alternative means issue was present, and there was no jury instruction error.

WAS THERE SUFFICIENT EVIDENCE FOR THE JURY TO CONVICT TYREE?

Tyree next argues that there was insufficient evidence to convict him of
aggravated robbery and aggravated battery.

"[W]hen sufficiency of the evidence is challenged in a criminal case . . . [, we review] all
the evidence in a light most favorable to the prosecution [and] must be convinced a
rational factfinder could have found the defendant guilty beyond a reasonable doubt.
[We] do not reweigh evidence . . . or make witness credibility determinations." State v.
Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).

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It is only in rare cases where the testimony is so incredible that no reasonable factfinder
could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v.
Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

The aggravated robbery statute, K.S.A. 21-3427, is set out above. Aggravated
battery is defined as "intentionally causing bodily harm to another person with a deadly
weapon, or in any manner whereby great bodily harm, disfigurement or death can be
inflicted." K.S.A. 21-3414(a)(1)(B).

In the present case, Lewis was called as a witness at the first trial but invoked his
right against self-incrimination, prompting a mistrial. Lewis testified at the second trial,
during which he was being held in federal custody awaiting sentencing in a separate case.
Lewis entered a plea in his federal case and, as part of his plea agreement, agreed to give
nonconflicting statements at Tyree's second trial. Lewis identified Tyree as his robber and
shooter in the second trial, but Tyree's counsel elicited testimony that Lewis' prior
testimony in federal court regarding who shot him during the robbery conflicted with this
testimony.

Tyree argues that because Lewis' testimony was contradictory, there was not
sufficient evidence to convict Tyree of aggravated robbery and aggravated battery.
However, Hinkle witnessed Tyree speaking with Lewis moments before Lewis was shot,
and Lewis told three police officers that Tyree robbed and shot him. He also told the
detective that Tyree robbed and shot him, and Lewis identified a photo of Tyree as the
perpetrator. The jury was aware of Lewis' prior conflicting testimony yet found Lewis'
testimony at the second trial to be credible.

As it is not our role to reweigh the credibility of witnesses and we are required to
view the evidence in the light most favorable to the State, Williams, 299 Kan. at 525, our
review of the record on appeal shows a rational factfinder could have found Tyree guilty
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beyond a reasonable doubt. Therefore, there was sufficient evidence for the jury to find
Tyree guilty of aggravated robbery and aggravated battery.

Affirmed.