State v. Boyd

• Decision Date: 23 December 2011
• Docket Number: No. 104,282.,104,282.
• Citation: 46 Kan.App.2d 945,268 P.3d 1210
• Parties: STATE of Kansas, Appellee, v. Herman Kerwin BOYD IV, Appellant.
• Court: Kansas Court of Appeals

268 P.3d 1210

46 Kan.App.2d 945

STATE of Kansas, Appellee,

v.Herman Kerwin BOYD IV, Appellant.

No. 104,282.

Court of Appeals of Kansas.

Dec. 23, 2011.

Syllabus by the Court

1. Should evidence be lacking to support an alternative means of committing a crime submitted to the jury, a guilty verdict fails for insufficient evidence.

2. A judgment of acquittal must be entered when a criminal conviction has been successfully challenged for lack of evidence.

3. Taking property from the person of the victim and taking property from the presence of the victim do not constitute alternative means of committing aggravated robbery.

4. The serial terms in K.S.A. 21–3205(1) defining aiding and abetting do not create alternative means of committing a crime.

5. Facing liability for a crime as an aider and abettor, on the one hand, creates an alternative means to committing the same offense as a principal, on the other. The danger to jury unanimity postulated in State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), that exists when a jury has been instructed on alternative means of committing a particular crime also exists if the jury has been given the options of convicting a defendant as an aider and abettor or as a principal.

6. K.S.A. 21–3205(2) imposes liability on a person committing a crime in league with one or more associates for any other crimes those associates commit during the perpetration of the planned offense, so long as the additional crimes may be considered foreseeable consequences. That rule of liability does not depend upon or create alternative means of committing a crime. Rather, the statute expands liability or responsibility for an individual engaged in a criminal enterprise to include crimes other participants may have committed in the course of carrying out that enterprise. The individual need not have committed the crime itself to be liable for it.

Lydia Krebs, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before GREENE, C.J., ATCHESON, J., and BRAZIL, S.J.

ATCHESON, J.

A Johnson County jury convicted Herman Kerwin Boyd IV of robbing a Sonic drive-in restaurant. Because Boyd held up the place with a cohort in crime, he was charged with aggravated robbery and aggravated assault both as a principal and as an aider and abettor. The case was submitted to the jury that way, prompting Boyd to burrow deep into the developing law of alternative means in hopes of finding an escape route on appeal. He primarily argues that aiding and abetting, as a basis for imposing criminal liability, amounts to an alternative means to acting as a principal. We agree. But on the facts, Boyd loses. There is sufficient evidence to support his conviction for aggravated robbery as both a principal and an aider and abettor. And because Boyd's partner wielded a deadly weapon, the aggravated assault was foreseeable criminal conduct during the course of the robbery, providing an independent ground to uphold that conviction. We also consider and turn aside Boyd's additional alternative means arguments and a challenge to his sentence.

Facts and Procedural History

During the evening of December 5, 2005, Boyd and Christopher Shivers went into a Sonic restaurant in Shawnee, Kansas. They entered with robbery rather than burgers on their minds. Shivers immediately fired a handgun and demanded the manager appear front and center. Ryan Greene came to the front of the store where he joined fellow employees Jennifer Thompson and Christina Osburn. Brandon Greene, Ryan's brother, was working in the grill area and tried to sneak out the back when the commotion erupted. Shivers intercepted him, and using the gun to emphasize the point that escape wasn't acceptable behavior, he shepherded Ryan toward the front of the store.

Shivers then brandished the gun and demanded Ryan Greene turn over the money. Ryan Greene opened the cash register. According to Thompson, Boyd then “pretty much pushed [Ryan] out of the way” and took the money. Shivers told Ryan Greene to open the safe. He complied. Thompson recalled Boyd urging Shivers to hurry up with the safe. Boyd then grabbed a plastic container out of the safe.

Shivers demanded the paper money Thompson and Osburn had in their aprons. Boyd, however, instructed Shivers to leave the coin changer Thompson carried, saying, “No, we don't need that.” Thompson testified that Boyd actually took the money from her. Boyd and Shivers then left the restaurant.

Security cameras captured much of the robbery and the images showed Boyd. The police released surveillance photos to the media the next day, and a tipster called in to identify Boyd. After the police arrested Boyd, he admitted being with Shivers at the Sonic restaurant. The Johnson County district attorney charged Boyd with three counts of aggravated robbery for taking property from Ryan Greene, Thompson, and Osburn and one count of aggravated assault of Brandon Greene. At trial, Boyd testified in his own defense. He told the jury he went into the Sonic restaurant with Shivers and helped in the robbery because he was fearful that Shivers would have shot him had he refused. Boyd's version, if the jury were to believe it, supported a defense of compulsion. See K.S.A. 21–3209.

The trial judge instructed the jury that Boyd could be found guilty of the aggravated robberies either as an aider and abettor or as a principal. The instruction related to the robbery of Ryan Greene omitted a portion of the aiding and abetting language. Nobody has complained about the omission on appeal, and we find it immaterial to the disposition of the issues presented to us. The trial judge instructed the jury on principal and aider and abettor liability on the aggravated assault count. The instructions included an explanation of aider and abettor liability under K.S.A. 21–3205(1). And they explained that a person committing a crime could be held liable for any other foreseeable crime occurring during the course of that offense, as provided in K.S.A. 21–3205(2). The trial judge instructed on Boyd's compulsion defense. On appeal, Boyd lodges no complaint about the jury instructions.

The jurors apparently found the compulsion defense underwhelming. They convicted Boyd of the aggravated robberies and the aggravated assault. Boyd's criminal history placed him in the highest category on the sentencing grid. The trial judge sentenced Boyd to 233 months in prison on the aggravated robbery of Ryan Greene, reflecting a standard sentence. He imposed sentences of 59 months in prison on the remaining aggravated robbery convictions and 12 months in prison on the aggravated assault conviction. All of those sentences were concurrent to the 233–month sentence. Boyd has timely appealed.

Alternative Means Challenges

General Principles

In State v. Schreiner, 46 Kan.App.2d 778, 782–83, 264 P.3d 1033 (2011), this court recently laid out the ramifications of submitting alternative means of committing a crime to a jury and the potentially seismic consequences when the evidence fails to support one of those means. We stated:

“When a statute establishes alternative means of committing a crime, the State must present evidence sufficient to support each means submitted to the jurors in the instructions. All of the jurors must be convinced beyond a reasonable doubt the defendant committed the offense. But the jurors need not agree on which of the alternative means has been proven. State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010). A general verdict of conviction is legally proper so long as the record contains sufficient evidence to support each means. See Wright, 290 Kan. 194, Syl. ¶ 2 ; State v. Stevens, 285 Kan. 307, 316, 172 P.3d 570 (2007). Should evidence be lacking on one of the means, however, then a guilty verdict fails for insufficient evidence even though there may be overwhelming evidence supporting the other means. See Wright, 290 Kan. at 204–06 .” Schreiner, 46 Kan.App.2d at ––––, 264 P.3d 1033.

Although Wright expressly defined the error in allowing jurors to consider a means of committing a crime without adequate factual support as one of insufficient evidence, the court in that case found enough evidence for each means and, therefore, affirmed the jury's guilty verdict. The court declined to expound upon the appropriate remedy. The Kansas appellate courts, however, have consistently recognized that a judgment of acquittal must be entered when a criminal conviction has been successfully challenged for lack of evidence. State v. Scott, 285 Kan. 366, Syl. ¶ 2, 171 P.3d 639 (2007); State v. Hollins, 9 Kan.App.2d 487, 489–90, 681 P.2d 687 (1984). The United States Supreme Court has pointed out that a constitutional double jeopardy bar would preclude a retrial when a conviction has been reversed for insufficient evidence. Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). We presume that to be the appropriate remedy absent any direction otherwise from the Kansas Supreme Court. Schreiner, 46 Kan.App.2d at 782–83, 264 P.3d 1033.

In considering Boyd's alternative means challenges, we view the evidence in a light most favorable to the State as the party prevailing at trial. An appellate court neither reweighs the evidence generally nor credits witness testimony contrary to the verdicts. See State v. Trautloff, 289 Kan. 793, 800–01, 217 P.3d 15 (2009); State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). After taking the evidence that way, the court typically reviews the relevant statutory language to determine if it creates alternative means of committing a given crime. That poses a question of law over which the appellate court exercises unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). In Schreiner, 46 Kan.App.2d at 778, 264 P.3d 1033, Syl. ¶ 1, this court offered a general...