State v. Shaw (Updated: July 23, 2012)

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No. 106,015

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROGER SHAW,
Appellant.

SYLLABUS BY THE COURT

1.
In an alternative means case, where a single offense may be committed in more
than one way, there must be jury unanimity as to the 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.

2.
Alternative means essentially entail materially different ways of committing a
particular crime based on the statutory definition or elements of the offense. When
criminal statutes create two or more distinct ways of committing an offense, those ways
reflect alternative means. Other criminal statutes establish only one way to commit an
offense, although they may use synonymous or redundant terms to define the prohibited
conduct. Such statutes do not create alternative means.

3.
Under the plain language of K.S.A. 21-3442, there are three alternative means to
commit the crime of involuntary manslaughter while driving under the influence of
alcohol: the unintentional killing of a human being committed in the (1) commission of,
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(2) attempt to commit, or (3) flight from an act described in K.S.A. 8-1567 and
amendments thereto.

4.
Under the facts of this case, the district court instructed the jury on multiple
alternative means of committing involuntary manslaughter while driving under the
influence of alcohol, and the State presented insufficient evidence at trial to prove each
alternative means.

5.
When there is insufficient evidence at trial to support the defendant's conviction of
each alternative means of committing a crime, the proper remedy is to reverse the
defendant's conviction and remand for a new trial only on the alternative means
supported by sufficient evidence in the first trial.

Appeal from Franklin District Court; THOMAS H. SACHSE, judge. Opinion filed July 20, 2012.
Reversed and remanded with directions.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Heather R. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., MARQUARDT, J., and KNUDSON, S.J.

Per Curiam: Roger Shaw appeals his conviction of involuntary manslaughter
while driving under the influence of alcohol. For the first time on appeal, Shaw argues
that we must reverse his conviction because the district court instructed the jury on
multiple alternative means of committing the crime and the State failed to present
sufficient evidence of each alternative means. In addition, Shaw contends that the district
court violated his constitutional rights by sentencing him based in part on his criminal
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history without first requiring that the criminal history be alleged in the complaint and
proven beyond a reasonable doubt to a jury. We agree with Shaw that involuntary
manslaughter while driving under the influence of alcohol is an alternative means crime.
We also agree with Shaw that the State failed to present substantial evidence of at least
one of the alternative means of committing the crime. Accordingly, we reverse Shaw's
conviction and remand for a new trial.

The tragic events of this case unfolded on a Sunday afternoon, July 19, 2009.
Adam and Aaron Kichler were brothers and spent a lot of time together, often riding their
motorcycles. At approximately 2:45 p.m., Adam and Aaron left their parents' home in
Ottawa to ride their motorcycles to Wellsville and then on to Kansas City to see a movie.
Adam later testified that they were not in a hurry and they did not exceed the speed limit
on the county road, which was 55 miles per hour. The two young men rode staggered;
Aaron rode in front near the center line, and Adam rode approximately 12 to 15 feet
behind him near the fog line by the shoulder of the road. The brothers drove eastbound on
Shawnee Road toward Wellsville.

Meanwhile, Roger Shaw and Dennis Ameigh were traveling back to Shaw's house
from a trip to buy car parts; Shaw was driving his truck westbound on Shawnee Road.
Adam testified that when he and Aaron were a quarter mile from the intersection of
Shawnee Road and Texas Road, he saw a red truck coming in the opposite lane; the truck
had slowed down to a "slow roll." Adam testified that as they came upon the truck, he
"saw the front end of the truck lift up," meaning that the driver was sharply accelerating
and beginning to turn left in front of the approaching motorcycles. Adam testified that he
saw the truck's wheels turn and he heard Aaron yell. Aaron's motorcycle hit the truck.
Adam locked his brakes and turned to the left, avoiding the truck by an inch or two.

Shanta Kemp, who lived nearby, was driving home, saw the aftermath of the
collision, stopped, and called 911. During her 911 call, Kemp informed the dispatcher
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that she could smell alcohol on Shaw's breath. Emergency services personnel were
dispatched to the scene and pronounced Aaron dead at the scene.

Joanna Buchorn, an emergency medical technician who treated Shaw at the scene,
later testified that Shaw told her that he had consumed "a couple of beers" prior to the
accident and repeatedly told her that he had not seen the motorcycles. Kyle Lasswell,
who was employed by the Wellsville Police Department and had been dispatched to the
collision, later testified that he and Adam saw an empty beer box on the ground by
Shaw's truck. Franklin County Sheriff's Deputy Carl Bentley testified that when he talked
with Shaw at the scene, he smelled a faint odor of alcohol coming from Shaw and that
Shaw admitted to drinking three beers that day. According to Bentley, Shaw told him that
the sun was in his eyes as he made the left turn from Shawnee Road onto Texas Road and
he could not see the motorcycles. At the request of law enforcement, Buchorn obtained a
blood sample from Shaw at 3:42 p.m. The blood sample tested at a .11 blood alcohol
level, above the legal limit of .08.

On November 19, 2009, the State charged Shaw with involuntary manslaughter
while driving under the influence of alcohol or drugs, in violation of K.S.A. 21-3442. The
jury trial occurred October 4-8, 2010. The main point of contention at trial was the
identification of the direct cause of the collision and, therefore, Aaron's death. The State
argued that Shaw's intoxication was the cause of the collision, while Shaw contended that
Aaron had been speeding. The State presented testimony from Emily Wood, the 911
dispatcher who received Kemp's call, which included the information that Kemp could
smell alcohol on Shaw's breath. Kemp also testified for the State. In addition to stating
that she smelled alcohol on Shaw's breath, Kemp testified that when she had seen the
motorcycles drive by a few minutes prior to the collision, she did not believe they were
speeding. Buchorn also testified about Shaw's admission that he had consumed "a couple
of beers" prior to the accident. Adam Kichler testified as to the events of the day and
specifically stated that neither he nor Aaron was speeding.
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The State also offered testimony from law enforcement officials including
Lasswell, Bentley, and Franklin County Sheriff's Deputy Brian Ferguson, who
photographed the scene and took measurements. Franklin County Sheriff Jeffrey Curry,
who at the time of the collision was a patrol sergeant, also testified for the State. Curry
had conducted a speed analysis on Adam's motorcycle primarily by considering the
length and direction of the skid marks. Curry determined that Adam was going 41-47
miles per hour at the point he locked up his rear brake. Because Adam and Aaron were
traveling together, Curry stated it was reasonable to assume they were going the same
speed and he had no reason to believe Aaron was driving faster than the posted speed
limit of 55 miles per hour. In addition, each law enforcement officer testified that, at mid-
afternoon on the day in question, the sun did not detrimentally affect his vision while
driving to the scene of the collision.

The State also called Dr. Christopher Long, who had analyzed bodily fluids taken
from Aaron and testified that the tests showed that sometime in the 20 hours prior to the
accident, Aaron had taken hydrocodone and Tylenol, but that the levels present would not
have caused impairment. Dr. Joel Kavan, a family physician, testified that he had treated
Aaron on July 8, 2009, and prescribed hydrocodone and an anti-nausea medication for
Aaron's back pain.

Next, the State presented the testimony of Andy Buck, a senior field claims
adjuster for Farm Bureau Life Insurance Services assigned to investigate the collision.
Buck interviewed Shaw as part of his investigation. Buck testified that Shaw told him
that he had consumed two and one-half beers over a 3-hour period on July 19, 2009.
Shaw told Buck that prior to the collision, he had seen the motorcycles traveling toward
him but after he began his turn, he looked up and the motorcycles were "right there."
Shaw told Buck that he believed the motorcyclists were racing and that Aaron could have
avoided hitting his truck.

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Dr. Erik Mitchell, the forensic pathologist who performed the autopsy on Aaron,
testified about Aaron's extensive injuries, both internal and external, and that the injuries
were consistent with direct impact with a vehicle. Jennifer Agee, a forensic toxicologist
with the Kansas Bureau of Investigation, testified that she had analyzed Shaw's blood
sample and found .11 grams of ethyl alcohol per 100 milliliters of blood, which is above
the legal limit in Kansas of .08.

Finally, the State presented the testimony of Robert McKinzie, an accident
reconstruction specialist, who had performed a reconstruction of the collision. McKinzie
based his analysis on an examination of the sheriff's department file, photographs of the
crash site, a visit to the crash site, information from witnesses, and a transcript. In
McKinzie's opinion, the sun was not a factor in the collision, nor was the weather or the
layout of the road. McKinzie also analyzed the speed of Adam's motorcycle and
determined that Adam—and by implication Aaron—had been traveling 52 or 53 miles
per hour at the time of the accident.

Shaw presented the testimony of four witnesses, but he made no attempt to dispute
the State's evidence that he had been drinking prior to the accident and that his blood
alcohol content was above the legal limit. Shaw recalled Ferguson to answer a question
about the geography around the intersection, and he also called the tow truck operator
who removed the vehicles from the scene.

Next, Shaw called Ameigh, his passenger at the time of the collision. Ameigh
testified that, on the day in question, he and Shaw were traveling back from Gardner,
where they had gone to buy parts for the car they were repairing. Ameigh further testified
that Shaw was not speeding as they approached the turn from Shawnee Road onto Texas
Road and that he slowed to make the turn, made a steady turn, and did not accelerate
sharply. Ameigh stated that as they were preparing to turn, he saw the lights of two
motorcycles at the top of a nearby hill; he thought they were at least a quarter of a mile
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away. Ameigh did not think the motorcycles were coming very quickly or that they were
racing; he glanced away for a few seconds and, when he looked back up, he saw a
motorcycle sliding toward the truck.

Shaw's final witness was John Glennon, a forensic automotive technologist and
full-time accident reconstructionist. Glennon read the police reports, reviewed
photographs of the scene, and read Curry's reconstruction report. He also visited the crash
site, but not until March 2010. Glennon determined that Shaw's truck moved south and
east after the collision and was pushed by the motorcycle. He concluded that the
minimum impact speed of Aaron's motorcycle was 84 miles per hour. In his report,
Glennon approximated Aaron's speed at 92 miles per hour. After Glennon's testimony,
Shaw rested his case.

In closing arguments, both parties focused on the estimated speed at which Aaron
was driving immediately prior to the collision. The State emphasized its contention that
Aaron and Adam were not speeding and that Shaw was intoxicated to the point of being
incapable of safely driving. Shaw, on the other hand, argued that Aaron and Adam were
speeding and challenged the State's witnesses' calculations that placed the speed of the
motorcycles below the speed limit. Shaw's counsel put it bluntly: "The cause of this
collision was high speed."

The jury deliberated approximately 2 hours, and there were no questions from the
jury or requests for the read-back of any testimony. The jury found Shaw guilty of
involuntary manslaughter while driving under the influence of alcohol to a degree that
rendered him incapable of safely driving. At sentencing, Shaw did not object to his
criminal history, which included three prior convictions of driving under the influence of
alcohol (DUI). The district court sentenced Shaw to 120 months' imprisonment. Shaw
timely appealed his conviction and sentence.

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For the first time on appeal, Shaw argues that we must reverse his conviction of
involuntary manslaughter while driving under the influence of alcohol because the
district court instructed the jury on alternative means of committing the crime and the
State failed to present sufficient evidence of each alternative means. Shaw also contends
that the district court violated his constitutional rights by sentencing him based in part on
his criminal history without first requiring that the criminal history be alleged in the
complaint and proven beyond a reasonable doubt to a jury. The State argues that the jury
was presented with sufficient evidence to convict Shaw of involuntary manslaughter
while driving under the influence of alcohol. The State further argues that the district
court correctly sentenced Shaw.

Both parties agree that when the sufficiency of the evidence is challenged in a
criminal case, the standard of review is whether, after review of all 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."
State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). The State also argues that
because Shaw did not make any substantive objection to the jury instruction setting forth
the elements of the crime including the alternative means of committing the crime, we
should review whether the jury instruction was clearly erroneous. See K.S.A. 22-3414(3).
"An instruction is clearly erroneous only if the reviewing court is firmly convinced there
is a real possibility the jury would have returned a different verdict if the trial error had
not occurred." State v. Martinez, 288 Kan. 443, 451-52, 204 P.3d 601 (2009).

Shaw's primary contention is that this is an alternative means case and the State
failed to present sufficient evidence of each alternative means of committing involuntary
manslaughter while driving under the influence of alcohol. Although Shaw did not raise
this argument below, this court has previously held that an alternative means error can be
raised for the first time on appeal. See State v. Waldrup, 46 Kan. App. 2d 656, 663, 263
P.3d 867 (2011) (alternative means challenge can be raised for the first time on appeal
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because it implicates insufficiency of evidence to support the conviction), petition for rev.
filed November 16, 2011; State v. Rivera, 42 Kan. App. 2d 914, 918, 218 P.3d 457 (2009)
(stating that a criminal defendant need not challenge the sufficiency of the evidence
before the district court to preserve the issue for appeal), rev. denied, 290 Kan. 1102
(2010).

Our Supreme Court has stated the following rule of law governing alternative
means cases in Kansas:

"'"In an alternative means case, where 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. [Citations omitted.] In
reviewing an alternative means case, the court must determine whether a rational trier of
fact could have found each means of committing the crime proved beyond a reasonable
doubt. [Citations omitted.]"'" State v. Wright, 290 Kan. 194, 202, 224 P.3d 1159 (2010)
(quoting State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 [1994]).

Shaw was convicted of violating K.S.A. 21-3442, which provides: "Involuntary
manslaughter while driving under the influence of alcohol or drugs is the unintentional
killing of a human being committed in the commission of, or attempt to commit, or flight
from an act described in K.S.A. 8-1567 and amendments thereto." K.S.A. 8-1567(a)(3)
prohibits a person from operating or attempting to operate a vehicle while under the
influence of alcohol to a degree that renders the person incapable of safely driving the
vehicle. The statute also prohibits a person from operating or attempting to operate a
vehicle while the alcohol concentration in the person's blood or breath is .08 or more. See
K.S.A. 8-1567(a)(1) and (2). Shaw was charged with a complaint that mirrored the
statutory language.

At trial, the district court instructed the jury as follows:

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"The defendant is charged with the crime of involuntary manslaughter while
driving 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 unintentionally killed Aaron Kichler;
"2. That it was done in the commission of, while attempting to commit, or while
in flight from committing or attempting to commit the act of operating any vehicle in this
state
(a) While under the influence of alcohol to a degree that rendered him incapable
of safely driving a vehicle; and/or
(b) While having an alcohol concentration of .08 or more as measured within two
hours of the time of operating or attempting to operate the vehicle; and
"3. That this act occurred on or about the 19th day of July, 2009, in Franklin
County, Kansas.
"The phrase 'alcohol concentration' means the number of grams of alcohol per
100 milliliters of blood.
"The fault or lack of fault of Aaron Kichler is a circumstance to be considered
along with all the other evidence to determine whether the defendant's conduct was or
was not the direct cause of Aaron Kichler's death."

The only objection Shaw raised to the jury instruction was that the last sentence
should be given in the form of a separate instruction. Shaw raised no objection to the
second claim or element of the crime as instructed by the jury, and, in fact, there was no
discussion between the district judge and counsel about the language of the second claim
or element of the crime during the jury instruction conference.

On appeal, Shaw argues that this instruction contained alternative means of
committing the crime, allowing the jury to find Shaw guilty of involuntary manslaughter
if he unintentionally killed Aaron committed in the (1) commission of, (2) attempt to
commit, or (3) flight from a DUI. Shaw does not argue that the State presented
insufficient evidence to support his conviction of involuntary manslaughter committed in
the commission of DUI. But Shaw argues that the State presented insufficient evidence to
support his conviction of involuntary manslaughter committed in an attempt to commit
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DUI. Shaw also argues that the State presented insufficient evidence to support his
conviction of involuntary manslaughter committed in flight from a DUI.

We must first determine whether involuntary manslaughter while driving under
the influence of alcohol in violation of K.S.A. 21-3442 is an alternative means crime. We
do so by examining the statutory definition of the crime. Interpretation of a statute is a
question of law over which an appellate court has unlimited review. State v. Arnett, 290
Kan. 41, 47, 223 P.3d 780 (2010).

The legislature has not statutorily defined an alternative means crime, nor
specified which crimes are alternative means crimes. This is left to judicial determination.
This court has adopted the following definition:

"Alternative means essentially entail materially different ways of committing a
particular crime based on the statutory definition or elements of the offense. When
criminal statutes create two or more distinct ways of committing an offense, those ways
reflect alternative means. Other criminal statutes establish only one way to commit an
offense, although they may use synonymous or redundant terms to define the prohibited
conduct. Such statutes do not create alternative means." State v. Schreiner, 46 Kan. App.
2d 778, Syl. ¶ 1, 264 P.3d 1033 (2011), petition for rev. filed December 5, 2011.

Under the plain language of K.S.A. 21-3442, there are three alternative means to
commit the crime of involuntary manslaughter while driving under the influence of
alcohol: the unintentional killing of a human being committed in the (1) commission of,
(2) attempt to commit, or (3) flight from an act described in K.S.A. 8-1567 and
amendments thereto. The State does not deny that this is an alternative means case.

Next, we must consider whether the State presented substantial evidence to prove
each alternative means. See Wright, 290 Kan. at 202. As previously stated, Shaw does not
argue that the State presented insufficient evidence of involuntary manslaughter
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committed in the commission of DUI. But Shaw argues that the State presented
insufficient evidence to support his conviction of involuntary manslaughter committed in
an attempt to commit DUI. Shaw notes that in State v. Stevens, 285 Kan. 307, 314-19,
172 P.3d 570 (2007), the Kansas Supreme Court held that under K.S.A. 2006 Supp. 8-
1567, operating and attempting to operate a vehicle present alternative means to commit
the crime of DUI. The Stevens court went on to determine that there was sufficient
evidence to support each alternative means under the facts of the case. 285 Kan. at 316-
19.

The State argues that, because it presented sufficient evidence to find Shaw guilty
of unintentionally killing Aaron while committing the act of DUI, it necessarily presented
sufficient evidence to find him guilty of unintentionally killing Aaron while attempting to
commit the act of DUI. The State relies on State v. Perkins, 46 Kan. App. 2d 121, 257
P.3d 1283 (2011), rev. granted December 19, 2011, argued April 11, 2012. In Perkins,
the defendant was convicted under K.S.A. 2008 Supp. 8-1567 for operating or attempting
to operate a vehicle while under the influence of alcohol. On appeal, the defendant argued
that there was insufficient evidence to support each alternative means of committing the
crime. The defendant noted that K.S.A. 21-3301 defines attempt as "'any overt act toward
the perpetration of a crime done by a person who intends to commit such crime but fails
in the perpetration thereof or is prevented or intercepted in executing such crime.'" 46
Kan. App. 2d at 124. The defendant argued that there was no evidence in his case that he
attempted but failed to commit the crime of DUI.

Acknowledging the decision in Stevens, this court found that operating or
attempting to operate a vehicle while under the influence of alcohol created alternative
means of committing the crime. 46 Kan. App. 2d at 122-23. But this court rejected the
defendant's application of K.S.A. 21-3301 to define attempt as that term is used under
K.S.A. 8-1567. This court noted that under the DUI statute, an attempt is "treated as the
legal equivalent of the completed offense and carries the same punishment," while the
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criminal attempt statute codifies a type of crime different and separate from a completed
offense. 46 Kan. App. 2d at 124-25. This court further noted that while criminal attempt
requires that the perpetrator intend to commit the crime, the DUI statute requires no such
intent. This court found that the DUI statute's specific mention of attempt controls over
the more general application of the criminal attempt statute. 46 Kan. App. 2d at 126-27.
This court concluded that "[f]or purposes of K.S.A. 2008 Supp. 8-1567, then, a driver
who actually operates a vehicle necessarily also attempts (successfully) to do so,"
although "[t]he converse would not necessarily be true." 46 Kan. App. 2d at 127.

We agree with the rationale expressed in Perkins. Thus, it is unnecessary for this
court to search for evidence in the record that Shaw attempted to commit a DUI but failed
to do so. Following the Perkins rationale, by presenting substantial evidence that Shaw
committed involuntary manslaughter during the commission of DUI, we conclude the
State necessarily presented substantial evidence that Shaw committed involuntary
manslaughter during the attempted commission of DUI. However, we acknowledge that
Perkins is under review by our Supreme Court.

Next, Shaw argues that the State presented insufficient evidence to support his
conviction of involuntary manslaughter committed in flight from a DUI. As Shaw notes,
our Supreme Court has stated that"[f]light has been defined simply as '[t]he act or an
instance of fleeing, esp. to evade arrest or prosecution.' [Citation omitted.]" State v.
Rogers, 282 Kan. 218, 230, 144 P.3d 625 (2006). Shaw argues there is no evidence to
support the inference that he was attempting to flee from the commission of DUI or to
evade arrest or prosecution for DUI.

The State first replies that the language "flight from" committing a DUI under
K.S.A. 21-3442 is superfluous and does not create an alternative means of committing
involuntary manslaughter. Our Supreme Court, however, has held that the rules of
statutory construction attempt to avoid rendering statutory language meaningless or
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superfluous. See State v. Sedillos, 279 Kan. 777, 784, 112 P.3d 854 (2005) (stating that
rendering a portion of the statute "superfluous or meaningless [is] a result sought to be
avoided by the rules of statutory construction"); State v. Burhans, 277 Kan. 858, 871, 89
P.3d 629 (2004) ("'If reasonably possible, this court is to avoid statutory constructions
that make part of a statute surplusage.' [Citation omitted.]").

Alternatively, the State contends that it presented sufficient evidence of flight.
Although the State made no argument during the trial that the evidence established flight
from a DUI, the State asserts on appeal that Shaw was "trying to get home without being
caught driving under the influence" and was therefore fleeing from the commission of
DUI. The citation the State gives to support this statement is merely to Ameigh's
testimony that the collision occurred while he and Shaw were returning to Shaw's house
from Gardner. Although the record establishes that the accident occurred near Shaw's
home, there is nothing in the record that supports the State's contention that Shaw was
"trying to get home without being caught driving under the influence."

Moreover, our Supreme Court has treated "flight" as coming after a completed
crime, not an ongoing crime. See State v. Kunellis, 276 Kan. 461, 467-74, 78 P.3d 776
(2003) (examining felony-murder statute, which criminalized the killing of a human
being in the commission of, attempt to commit, or flight from an inherently dangerous
felony and referring to flight from that "completed crime"). Under the ordinary meaning
of the language of K.S.A. 21-3442, there must be evidence of a separate flight from the
crime of DUI to support a conviction under this alternative means. Here, there was
absolutely no evidence presented at trial that Shaw committed involuntary manslaughter
in flight from a DUI. Therefore, because there was insufficient evidence to support one of
the alternative means, the conviction was in error.

The Kansas Supreme Court has stated: "'[A] reversal mandated by Timley [based
on an alternative means error] is a reversal for insufficient evidence. An insufficiency
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error cannot be harmless because it means the State failed to meet its burden of proving
the defendant guilty beyond a reasonable doubt. This is a most basic guarantee of due
process in criminal cases.'" Wright, 290 Kan. at 205 (quoting Beier, Lurching Toward the
Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 299
(2005). Thus, in Wright the Kansas Supreme Court holds that an alternative means error
is not subject to harmless error analysis. 290 Kan. at 205. The Court of Appeals is duty
bound to follow Kansas Supreme Court precedent, absent some indication the court is
departing from its previous position. State v. Jones, 44 Kan. App. 2d 139, 142, 234 P.3d
31 (2010), rev. denied 292 Kan. 967 (2011). Thus, we will not engage in any analysis of
whether the alternative means error committed in this case can be considered harmless.

Shaw's brief concludes by requesting this court to reverse his conviction. No issue
is raised by either party as to whether Shaw can be retried for involuntary manslaughter
while driving under the influence of alcohol. Arguably, the legal issue of whether Shaw
can be retried for the offense is not ripe for determination. But in the interest of judicial
economy, it makes sense to address the issue now in order to save the parties the time and
expense of having a second trial that may be found to be legally barred. See State v.
Hernandez, 294 Kan. 200, 208-11, 273 P.3d 774 (2012) (court addressed, but did not
decide, whether defendant could be retried for off-grid version of aggravated indecent
liberties after his conviction for on-grid version was reversed and remanded for retrial).

The remedy for an alternative means error remains unsettled in Kansas. Because
an alternative means error implicates insufficiency of the evidence to support the
conviction, arguably an alternative means error results in reversal of the conviction and
retrial is barred by double jeopardy. See Burks v. United States, 437 U.S. 1, 11, 16-18, 98
S. Ct. 2141, 57 L. Ed. 2d 1 (1978) (reversal for insufficient evidence is akin to judgment
of acquittal warranting double jeopardy protection). This court has taken this position
without specifically addressing the issue. See Perkins, 46 Kan. App. 2d at 128-32
(reversing conviction of driving while suspended due to alternative means error and
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entering a judgment of acquittal); State v. Owen, No. 102,814, 2011 WL 2039738, at *1-5
(Kan. App. 2011) (unpublished opinion) (reversing convictions of forgery due to
alternative means error), rev. granted February 17, 2012; see also dicta in State v. Boyd,
46 Kan. App. 2d 945, 948-49, 268 P.3d 1210 (2011), (stating the presumed remedy for
insufficient evidence of an alternative means crime is reversal and entry of a judgment of
acquittal), petition for rev. filed January 23, 2012; cross-petition for rev. filed February 6,
2012.

In State v. Crane, 260 Kan. 208, 918 P.2d 1256 (1996), the defendant was
convicted of multiple crimes including lewd and lascivious behavior and kidnapping. On
appeal, our Supreme Court affirmed the defendant's conviction of lewd and lascivious
behavior. As to kidnapping, our Supreme Court found that, as charged, the kidnapping
statute presented the alternative means of kidnapping by "taking or confining of any
person, accomplished by force, threat or deception, with the intent to hold such person:
. . . (b) To facilitate flight or the commission of any crime; or (c) To inflict bodily injury
or to terrorize the victim or another." 260 Kan. at 230. After reciting the standard of
review for an alternative means case and reviewing the facts in the record on appeal, the
Supreme Court found that there was insufficient evidence to support a finding that the
defendant took or confined his victim to facilitate flight or the commission of another
crime. 260 Kan. at 230-34. The court simply reversed the kidnapping conviction and did
not state whether retrial of any sort was appropriate. 260 Kan. at 234.

Although there is no Kansas Supreme Court case directly on point, the Supreme
Court of Washington has addressed the remedy to an alternative means error. It is
important to note that current alternative means analysis in Kansas is similar to that of
Washington. See Timley, 255 Kan. at 289 (quoting State v. Kitchen, 110 Wash. 2d 403,
410, 756 P.2d 105 [1988], to distinguish between alternative means and multiple acts
challenges and to articulate the test for alternative means cases). In State v. Ramos, 163
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Wash. 2d 654, 660-61, 184 P.3d 1256 (2008), the Washington Supreme Court explicitly
discussed double jeopardy principles in an alternative means case:

"The alternative means principle dictates that when a jury renders a guilty verdict
as to a single crime, but one of the alternative means for committing that crime is later
held to be invalid on appeal and the record does not establish that the jury was unanimous
as to the valid alternative in rendering its verdict, double jeopardy does not bar retrial on
the remaining, valid alternative mean. [Citations omitted.] This is the case even when one
alternative mean has been reversed on appeal due to a finding of insufficient evidence, a
finding that has the same double jeopardy implications as an outright acquittal in other
circumstances. [Citations omitted.]"

See also State v. Lucas, No. 27042-1-II, 2002 WL 399485, at *1-3 (Wash. App. 2002)
(unpublished opinion) (first-degree robbery conviction reversed and remanded for new
trial after appellate court found insufficient evidence to support one of the alternative
means of committing the crime).

Moreover, in her above-referenced law journal article, Justice Beier addressed
retrial following an alternative means error as follows:

"In a Timley alternative means case, any reversal would be grounded on a failure
of proof, a violation of the super-sufficiency condition. Thus retrial on that theory could
not be permitted. It, like retrial on any theory held unsupported by sufficient evidence on
appeal, would result in double jeopardy. The defendant can only be retried on the theory
for which evidence was sufficient the first time, without the pollution of evidence or
argument supporting the alternative theory." 44 Washburn L.J. at 294.

In Shaw's case, we are not reversing his conviction because there was insufficient
evidence that he committed the crime of involuntary manslaughter while driving under
the influence of alcohol; clearly there was sufficient evidence to support Shaw's
conviction based on at least one means of committing the crime. Rather, we are reversing
18

Shaw's conviction only because, at least theoretically, the jury could have convicted
Shaw based on an alternative means not supported by the evidence, i.e., involuntary
manslaughter committed in flight from a DUI. If Shaw's conviction had not been
supported by sufficient evidence on any of the alternative means of committing the crime,
then this would be the functional equivalent of an acquittal and a retrial would be barred
by double jeopardy. But we cannot ignore the fact that there was sufficient evidence to
prove at least one means of committing the crime. In this instance, it stands to reason that
the proper remedy is to reverse Shaw's conviction and remand for a new trial only on the
alternative means supported by sufficient evidence in the first trial. This remedy does not
violate Shaw's double jeopardy rights.

In summary, the State presented sufficient evidence to support Shaw's conviction
of involuntary manslaughter committed in the commission of DUI. Our conclusion that
the State presented sufficient evidence to support Shaw's conviction of involuntary
manslaughter committed in an attempt to commit DUI is based on Perkins, 46 Kan. App.
2d at 127. But because Perkins is still under review by the Kansas Supreme Court, the
safest course of action for the State is to retry Shaw on only one means of committing the
crime: the unintentional killing of a human being committed in the commission of DUI.
Accordingly, Shaw's conviction of involuntary manslaughter is reversed and remanded
for a new trial consistent with this opinion. Because we are reversing Shaw's conviction,
we need not address his sentencing issue.

Reversed and remanded with directions.

* * *

MALONE, J., concurring: I agree with the majority that under current Kansas
Supreme Court precedent, Roger Shaw's conviction of involuntary manslaughter while
driving under the influence of alcohol must be reversed due to an alternative means error.
19

I also agree with the majority that the case should be remanded for a new trial only on the
alternative means supported by sufficient evidence in the first trial. I write separately to
express my view that an alternative means error, like almost every other kind of trial
error, should be subject to harmless error analysis.

Our Supreme Court has stated the following rule of law governing alternative
means cases in Kansas:

"'"In an alternative means case, where 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. [Citations omitted.]"'"
State v. Wright, 290 Kan. 194, 202, 224 P.3d 1159 (2010) (quoting State v. Timley, 255
Kan. 286, 289, 875 P.2d 242 [1994]).

I take no issue with applying this rule of law to determine whether an alternative
means error has been committed. In fact, this rule of law appears to represent the
prevailing view of courts in many states. See Annot., Requirement of Jury Unanimity as
to Mode of Committing Crime Under Statute Setting Forth the Various Modes by Which
Offense May Be Committed, 75 A.L.R.4th 91.

But in Wright, the Kansas Supreme Court went further than necessary by stating
that an alternative means error is not subject to harmless error analysis. 290 Kan. at 205.
The Supreme Court began the opinion by reaffirming the rule of law initially set forth in
Timley, i.e., in an alternative means case, unanimity is not required as to the means by
which a crime is committed so long as substantial evidence supports each alternative
means. 290 Kan. at 202. But following a discussion of other alternative means cases in
Kansas, the Supreme Court specifically disapproved of language in State v. Dixon, 279
Kan. 563, 604-06, 112 P.3d 883 (2005), which had allowed harmless error analysis in an
20

alternative means case. 290 Kan. at 206. The Wright court determined that Timley and
Dixon "'simply cannot coexist.'" 290 Kan. at 205.

Timley actually contains very little analysis of the alternative means issue. In fact,
the opinion only refers to the issue in order to explain the difference between an
alternative means case and a multiple acts case. 255 Kan. at 288-90. Timley stated the
rule of law to determine whether an alternative means error has been committed, but the
opinion never stated that the error could not be harmless. The Supreme Court later
explained in Dixon that an alternative means error can be harmless. See 279 Kan. at 605-
06. So in other words, Timley established the rule of law to determine whether an
alternative means error has been committed; Dixon later clarified that an alternative
means error sometimes can be harmless. I believe that the two decisions can peacefully
coexist.

I begin by noting that the United States Supreme Court agrees that an alternative
means error can be analyzed for harmlessness. In Hedgepeth v. Pulido, 555 U.S. 57, 129
S. Ct. 530, 172 L. Ed. 2d 388 (2008), a California jury convicted Michael Pulido of
felony murder and, on his direct appeal, Pulido argued that the jury instructions
erroneously allowed the jury to find him guilty of felony murder if he formed the intent to
aid and abet the underlying felony before the murder or if he formed the intent only after
the murder. The California Supreme Court found that the latter theory was invalid under
California law, but it did not reverse the conviction because the court found that the error
did not prejudice Pulido. After his direct appeal, Pulido sought habeas relief in federal
court, and the federal district court granted the relief, finding that instructing the jury on
the legally invalid theory had a "'"substantial and injurious effect or influence in
determining the jury's verdict."'" 555 U.S. at 59. The State appealed, and the Ninth
Circuit Court of Appeals affirmed the federal district court's decision granting Pulido a
new trial. But the Ninth Circuit court went further by agreeing with Pulido that
21

instructing a jury on multiple theories of guilt, one of which is legally improper, is
"structural" error that is not subject to harmless error review. See 555 U.S. at 59-60.

The State appealed to the United States Supreme Court. The Court first noted that
the precedent relied upon by the Ninth Circuit based its structural error analysis on
opinions issued prior to the Court's conclusion in Chapman v. California, 386 U.S. 18, 87
S. Ct. 824, 17 L. Ed. 2d 705 (1967), that constitutional errors can be harmless.
Hedgepeth, 555 U.S. at 60. The Court then pointed out a series of post-Chapman cases in
which it stated that certain types of instructional error are subject to harmless error
analysis. 555 U.S. at 60-61. The Court emphasized that Neder v. United States, 527 U.S.
1, 11, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999),

"makes clear that harmless-error analysis applies to instructional errors so long as the
error at issue does not categorically '"vitiate[e] all the jury's findings."' [Citation omitted.]
An instructional error arising in the context of multiple theories of guilt no more vitiates
all the jury's findings than does omission or misstatement of an element of the offense
when only one theory is submitted[, as happened in Neder]." Hedgepeth, 555 U.S. at 61.

The Court went on to state that drawing a distinction between alternative means
errors and instructional errors such as those in Neder would be "'patently illogical.'" 555
U.S. at 61. The Court unanimously found that the error in Pulido's case did not constitute
structural error, requiring automatic reversal of his conviction. A majority of the Court
also found that the Ninth Circuit had not sufficiently engaged in the proper analysis to
determine whether the trial error had a substantial and injurious effect or influence in
determining the jury's verdict. 555 U.S. at 61-62. Accordingly, the Court remanded to the
Ninth Circuit for proper application of the "substantial and injurious effect" analysis to
determine whether Pulido was entitled to a new trial. 555 U.S. at 62.

Hedgepeth is distinguishable from Shaw's case because the alternative means error
in Hedgepeth was not based upon insufficient evidence. But the United States Supreme
22

Court has held that an alternative means error based on insufficient evidence of one of the
means does not provide an independent basis for reversing an otherwise valid conviction.
In Griffin v. United States, 502 U.S. 46, 58-60, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991),
the Court addressed the following issue: "[W]hether, in a federal prosecution, a general
guilty verdict on a multiple-object conspiracy charge must be set aside if the evidence is
inadequate to support conviction as to one of the objects." 502 U.S. at 47. After a lengthy
discussion of prior cases, the Court stated that it knew of no case in which it had set aside
a general verdict "because one of the possible bases of conviction was neither
unconstitutional . . . nor even illegal . . . but merely unsupported by sufficient evidence."
502 U.S. at 56. The Court further explained:

"Jurors are not generally equipped to determine whether a particular theory of conviction
submitted to them is contrary to law—whether, for example, the action in question is
protected by the Constitution, is time barred, or fails to come within the statutory
definition of the crime. When, therefore, jurors have been left the option of relying upon
a legally inadequate theory, there is no reason to think that their own intelligence and
expertise will save them from that error. Quite the opposite is true, however, when they
have been left the option of relying upon a factually inadequate theory, since jurors are
well equipped to analyze that evidence [citation omitted]. . . .
". . . [I]f the evidence is insufficient to support an alternative legal theory of
liability, it would generally be preferable for the court to give an instruction removing
that theory from the jury's consideration. The refusal to do so, however, does not provide
an independent basis for reversing an otherwise valid conviction." 502 U.S. at 59-60.

I have not reviewed the law in every state to ascertain how many state courts apply
harmless error analysis in alternative means cases. But Washington is noteworthy
because Washington state courts follow the same rule of law governing alternative means
cases that Kansas courts follow: In an alternative means case, unanimity is not required
as to the means by which a crime is committed so long as substantial evidence supports
each alternative means. State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 (1988);
State v. Nonog, 145 Wash. App. 802, 811-12, 187 P.3d 335 (2008). Nevertheless, courts
23

in Washington apply harmless error analysis to determine whether an alternative means
error constitutes reversible error. In State v. Lobe, 140 Wash. App. 897, 167 P.3d 627
(2007), the defendant was convicted of, among other things, two counts of witness
tampering, which may be committed by the alternative means of "attempting to induce a
person to (1) testify falsely or withhold testimony, (2) absent him- or herself from an
official proceeding, or (3) withhold information from a law enforcement agency.
[Citation omitted.]" 140 Wash. App. at 902-03. On appeal, the defendant argued that his
convictions should be overturned on jury unanimity grounds. The State conceded it had
failed to present substantial evidence on each alternative means for each count but argued
that the error was harmless.

The Washington Court of Appeals applied harmless error analysis, stating that
"where there are three alternative means of committing a crime and the jury is instructed
on all three, either (1) substantial evidence must support each alternative means on which
evidence or argument was presented or (2) evidence and argument must have only been
presented on one means." 140 Wash. App. at 905. In other words, the court reasoned that
although substantial evidence was not presented on each alternative means, the verdict
could be upheld if evidence was presented on only one means and jury unanimity was
assured. Ultimately, the court found that the error in the case required reversal because it
left too much doubt as to whether the jury relied on a means for which substantial
evidence was not submitted. 140 Wash. App. at 906-07. However, the dissenting opinion
would have affirmed the conviction based on harmless error. 140 Wash. App. at 911-13
(Hunt, J., dissenting). See also State v. Allen, 127 Wash. App. 125, 130, 110 P.3d 849
(2005) ("But if one or more of the alternative means is not supported by substantial
evidence, the conviction must be reversed unless this court can determine that the verdict
was based on only one of the alternative means and that substantial evidence supported
that alternative means.").

24

Returning to Kansas law, generally, errors at any stage of trial proceedings are
subject to harmless error analysis under K.S.A. 2011 Supp. 60-261, which provides:

"Unless justice requires otherwise, no error in admitting or excluding evidence,
or any other error by the court or a party, is ground for granting a new trial, for setting
aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order. At
every stage of the proceeding, the court must disregard all errors and defects that do not
affect any party's substantial rights." (Emphasis added.)

Our Supreme Court has set forth the following test for determining whether an
error is harmless:

"[B]efore a Kansas court can declare an error harmless it must determine that the error
did not affect a party's substantial rights, meaning it will not or did not affect the trial's
outcome. The degree of certainty by which the court must be persuaded that the error did
not affect the outcome of the trial will vary depending on whether the error implicates a
right guaranteed by the United States Constitution. If it does, a Kansas court must be
persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e.,
there is no reasonable possibility that the error contributed to the verdict. If a right
guaranteed by the United States Constitution is not implicated, a Kansas court must be
persuaded that there is no reasonable probability that the error will or did affect the
outcome of the trial." State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert denied
132 S. Ct. 1594 (2012).

Not all errors are subject to this harmless error analysis. Structural error occurs in
very limited circumstances where the error "'affect[s] the framework within which the
trial proceeds'" and thus defies analysis by harmless error standards. Boldridge v. State,
289 Kan. 618, 627, 215 P.3d 585 (2009) (quoting Arizona v. Fulminante, 499 U.S. 279,
309-10, 111 S. Ct. 1246, 113 L. Ed. 2d 302 [1991]). Errors which have been found to be
structural include the denial of the right to counsel, the denial of the right to public trial,
and the denial of the right to trial by jury. Boldridge, 289 Kan. at 627-28. But other errors
25

of constitutional magnitude are simply errors in the trial process itself and are subject to
harmless error analysis. See Neder, 527 U.S. at 8 ("'[I]f the defendant had counsel and
was tried by an impartial adjudicator, there is a strong presumption that any other
[constitutional] errors that may have occurred are subject to harmless error analysis.'").

This brings us to the question: Should an alternative means error be subject to
harmless error analysis? An alternative means error presents a hybrid issue. The error is
committed when the district court instructs the jury on an alternative means of
committing a crime that is not supported by substantial evidence. In this sense, an
alternative means error is an instructional error. But the error implicates insufficiency of
the evidence to the extent that the jury may have convicted the defendant on at least one
means of committing the crime that is not supported by substantial evidence.

The Wright court rejected harmless error analysis in alternative means cases with
the following reasoning:

"'[A] reversal mandated by Timley is a reversal for insufficient evidence. An insufficiency
error cannot be harmless because it means the State failed to meet its burden of proving
the defendant guilty beyond a reasonable doubt. This is a most basic guarantee of due
process in criminal cases. [Citation omitted.]
"'The Timley super-sufficiency condition evolved for a good reason. It evolved
because we recognized that we were allowing uncertainty as to how the State persuaded
each juror. We were comfortable with this uncertainty—at that particular level of
generality in the jury's factfinding—only because we insisted on assurance that each
juror's vote was supported by a means for which there was sufficient evidence. Without
that assurance, we are back to where we were before Timley. We have no guarantee that
the jury was unanimous at the level of factual generality that matters most of all: guilt v.
innocence.'" 290 Kan. at 205 (quoting Beier, Lurching Toward the Light: Alternative
Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 299 [2005]).

26

In Wright, the Supreme Court reasoned that a reversal based on an alternative
means error "is a reversal for insufficient evidence" and thereby cannot be harmless. 290
Kan. at 205. But this is an incomplete analysis of the issue. Granted, an alternative means
error means that the State failed to present sufficient evidence to prove at least one of the
alternative means of committing the crime. But this fact does not eliminate harmless error
from consideration provided there was sufficient evidence to prove another means of
committing the crime. The question then becomes: Based on the evidence presented at
trial and the arguments made to the jury, does the record clearly establish that the jury
found the defendant guilty of only the alternative means of committing the crime that is
supported by sufficient evidence? If the answer to this question is yes, then we have a
unanimous verdict supported by sufficient evidence and the conviction is valid.

I find it noteworthy that the Kansas Supreme Court's treatment of alternative
means cases is inconsistent with its treatment of multiple acts cases. A multiple acts error
is committed when the prosecutor fails to elect a particular criminal act in which it will
rely for a conviction, or the trial court fails to instruct the jurors that all of them must
agree on the same underlying criminal act. Timley, 255 Kan. at 289. When a multiple acts
error is committed, there is uncertainty whether the jury found the defendant guilty of the
same underlying criminal act. With a multiple acts error, like with an alternative means
error, "'[w]e have no guarantee that the jury was unanimous at the level of factual
generality that matters most of all: guilt vs. innocence.'" See Wright, 290 Kan. at 205.
But our Supreme Court holds that a multiple acts error is subject to harmless error
analysis. State v. Voyles, 284 Kan. 239, 252-53, 160 P.3d 794 (2007). If a multiple acts
error is subject to harmless error analysis, then an alternative means error also should be
analyzed for harmlessness.

The multiple acts issue and the alternative means issue are closely related; both
issues implicate jury unanimity but in different ways. Thus, the two issues can be
analyzed in a similar manner. Appellate courts can apply a modified three-step analysis
27

for alternative means cases that is similar to the rubric our Supreme Court has adopted for
multiple acts cases. See Voyles, 284 Kan. at 244-45. Step one: Do we have an alternative
means crime? This is determined by examining the statutory definition of the crime to
determine whether the statute creates two or more distinct ways of committing an
offense. See State v. Schreiner, 46 Kan. App. 2d 778, Syl. ¶ 1, 264 P.3d 1033 (2011),
petition for rev. filed December 5, 2011.

Step two: Assuming the defendant was convicted of an alternative means crime,
was error committed? In an alternative means case, error is committed when the district
court instructs the jury on alternative means of committing a crime and the State presents
insufficient evidence to prove each alternative means. This is the test enunciated in
Timley and Wright.

Step three: Assuming there was an alternative means error, is the error reversible?
In a multiple acts case, the ultimate test for harmlessness is the "clearly erroneous"
standard articulated by the Kansas Legislature in K.S.A. 22-3414(3). See Voyles, 284
Kan. at 252-53. "An instruction is clearly erroneous only if the reviewing court is firmly
convinced there is a real possibility the jury would have returned a different verdict if the
trial error had not occurred." State v. Martinez, 288 Kan. 443, 451-52, 204 P.3d 601
(2009). This standard may be applicable in an alternative means case to the extent that the
error is committed when the trial court gives a jury instruction containing an alternative
means error and the defendant fails to object.

But generally, the burden to establish harmless error should be on the party who
benefits from the error. Ward, 292 Kan. at 568-69. Also, the burden to establish harmless
error in alternative means cases should be set high to deter prosecutors and trial judges
from routinely infecting jury instructions with alternative means that are not supported by
the evidence. And as the Wright court stated, an alternative means error implicates "'a
most basic guarantee of due process in criminal cases.'" 290 Kan. at 205. So rather than
28

applying the clearly erroneous standard that is used in a multiple acts case, it seems
appropriate in an alternative means case to apply harmless error analysis under K.S.A.
2011 Supp. 60-261, including the test for determining harmless error articulated by the
Kansas Supreme Court in Ward, 292 Kan. at 565.

Applying this three-step test to the facts herein results in the following analysis.
Step one: We have an alternative means crime. Involuntary manslaughter while driving
under the influence of alcohol (DUI) can be committed in three distinct ways: in the
commission of DUI, in an attempt to commit DUI, or in flight from a DUI. Step two:
Error was committed when the district court instructed the jury on an alternative means
that was not supported by substantial evidence, i.e., involuntary manslaughter committed
in flight from a DUI. Step three: The error was not reversible in this case because the
jury never heard evidence concerning flight from a DUI and the prosecutor never argued
or even mentioned this theory to the jury. Based on the evidence presented at trial and the
arguments made to the jury, there is no reasonable possibility that any one of the jurors
could have found Shaw guilty of involuntary manslaughter committed in flight from a
DUI. Instead, the record clearly establishes that the jury unanimously found Shaw guilty
of involuntary manslaughter committed in the commission of DUI, and this means of
committing the crime is supported by sufficient evidence. The only reasonable conclusion
is that the alternative means error did not affect Shaw's substantial rights, meaning it did
not affect the outcome of the trial. See Ward, 292 Kan. at 565.

I respectfully suggest that in Wright, the Kansas Supreme Court unnecessarily
eliminated harmless error analysis from alternative means cases. This case provides a
good example of why that ruling was a mistake. The only issue at Shaw's trial was
whether Aaron Kichler's death was caused by his speeding rather than by Shaw's DUI.
Shaw received a fair trial on that issue, and the jury unanimously returned a verdict of
guilty, which is supported by sufficient evidence. Today, we are reversing Shaw's
conviction due to an error that did not impact the structure of his trial and certainly had
29

no bearing on the outcome of the case. Remand for retrial under these circumstances is
both unnecessary and unwarranted.