State v. Brown, No. 103,842.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtThe opinion of the court was delivered by LUCKERT
Citation284 P.3d 977
Docket NumberNo. 103,842.
Decision Date24 August 2012
PartiesSTATE of Kansas, Appellee, v. George Lowell BROWN II, Appellant.

284 P.3d 977

STATE of Kansas, Appellee,
v.
George Lowell BROWN II, Appellant.

No. 103,842.

Supreme Court of Kansas.

Aug. 24, 2012.


[284 P.3d 981]



Syllabus by the Court

1. Under the alternative means rule and its corollary super-sufficiency requirement, if 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.

2. The first thing that a prosecutor and district court judge must do to try to ensure that alternative means analysis and its super-sufficiency requirement will not compel reversal of any conviction is to identify whether the criminal statute supporting the charged

[284 P.3d 982]

crime is an alternative means statute. If so, the elements jury instruction incorporating the statute should be tailored to include only those alternative means for which there is some evidence.

3. Statutory provisions defining a single crime but stating two or more distinct mental states can provide alternative means by which a defendant may commit the crime.

4. Identifying an alternative means statute is more complicated than simply spotting the word “or.” Rather, as with any situation in which the courts are called upon to interpret or construe statutory language, the touchstone is legislative intent.

5. To divine legislative intent, courts begin by examining and interpreting the language the legislature used. Only if that language is ambiguous do we rely on any revealing legislative history or background considerations that speak to legislative purpose, as well as the effects of application of canons of statutory construction.

6. Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal.

7. When faced with an alternative means question, a court must determine for each statute what the legislature's use of a disjunctive “or” is intended to accomplish. Is it to list alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in some statutes, a causation element? Or is it merely to describe a material element or a factual circumstance that would prove the crime? The listing of alternative material elements, when the list is incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in a jury instruction.

8. Statutory structure, including separation of alternatives into distinct subsections, can be an important clue to legislative intent on alternative means.

9. Options within alternative means do not constitute further alternative means if they do not state additional and distinct ways of committing the subject crime, that is, if they do not require proof of at least one distinct, material element of mens rea, actus reus, or causation.

10. Options within a means or definitional statutory language that merely elaborates on elements rather than defining the subject crime signals secondary matter that does not raise an alternative means issue.

11. Statutory language purely descriptive of factual circumstances that may prove the subject crime signals secondary matter not giving rise to an alternative means issue.

12. Alternative means of committing a crime are not created by the phrase “of either the child or the offender, or both” in K.S.A. 21–3504(a)(3)(A), which describes indecent liberties with a child as any lewd fondling or touching of either a child who is under 14 years of age or the offender “done or submitted to with the intent to arouse or satisfy the sexual desires of either the child or the offender, or both.” The phrase “either the child or the offender, or both” does not state a material element of the crime but merely describes a secondary matter, the potential yet incidental objects of the offender's required intent. This phrase also outlines options within a means, and it can be accurately described as purely descriptive of factual circumstances that may prove the distinct, material mental state element of the crime.

13. Alternative means of committing a crime are not created by the phrase “of the offender or another” in K.S.A. 21–3508(a)(2), which prohibits “exposing a sex organ in the presence of a person who is not the spouse of the offender and who has not consented thereto, with intent to arouse or gratify the sexual desires of the offender or another.” The distinct, material mens rea of the crime is the unified intent to arouse or gratify sexual desires. The phrase “of the offender or another,” which is a description of the potential incidental objects of that intent, merely outlines options within a means, descriptive of factual circumstances that may form the State's proof.

[284 P.3d 983]

14. A trial court exercising its discretion under K.S.A. 22–3414(2) to allow a party to reopen its case for good cause must consider the timeliness of the motion, the character of the testimony, and the effect of granting the motion. The party moving to reopen should provide a reasonable explanation for failing to present the evidence in its case-in-chief. The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The belated receipt of such testimony should not imbue the evidence with distorted importance, prejudice the opposing party's case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered.

15. It is improper for a prosecutor to express a personal opinion regarding the ultimate guilt or innocence of a criminal defendant.

16. Prosecutors are not allowed to make statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law.

17. An inmate who has received an off-grid indeterminate life sentence can leave prison only if the successor to the Kansas Parole Board grants the inmate parole. Therefore, a sentencing court has no authority to order a term of lifetime postrelease supervision in conjunction with an off-grid indeterminate life sentence.

18. Use of prior convictions in a defendant's criminal history score to enhance the defendant's sentence without requiring the history to be included in the complaint and proved to a jury beyond a reasonable doubt does not violate the defendant's constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).


Lydia Krebs, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

James R. Spring, deputy county attorney, argued the cause, and Steve Six, attorney general, was with him on the brief for appellee.


The opinion of the court was delivered by LUCKERT, J.:

In past decisions, this court has applied a super-sufficiency requirement for evidence in alternative means cases. When a single criminal offense may be committed by alternative means, jury unanimity is not required as to the means by which the crime was committed, as long as substantial evidence supports each alternative means set out in the jury instructions. If the evidence is insufficient on one or more of the means on which the jury has been instructed, the conviction must be reversed.

Defendant George L. Brown II's first issue on appeal requires us to consider specifically for the first time the starting point of an alternative means analysis: When does a statute—and thus a jury instruction employing its language—set out alternative means to commit a crime?

We hold that a statute—and any instruction that incorporates it—must list distinct alternatives for a material element of the crime, not merely describe a material element or a factual circumstance that would prove the crime, in order to qualify for an alternative means analysis and application of the super-sufficiency requirement. This holding leads us to conclude that Brown's jury was not presented with alternative means on the aggravated indecent liberties or the lewd and lascivious behavior charges against him in this case.

In his second issue, Brown argues the trial court erred in allowing the State to reopen its case-in-chief to present evidence of his age. We reject this argument because the trial court did not abuse its discretion in granting the State's request; as the trial court determined, the additional evidence could assist the jury in determining Brown's guilt of the off-grid crime of aggravated indecent liberties with a child, and the timing of the additional evidence did not cause legal prejudice.

We also reject Brown's third argument that the prosecutor committed reversible

[284 P.3d 984]

misconduct during jury selection and closing argument; while we find the prosecutor committed misconduct, the misconduct was harmless.

As to Brown's fourth issue, we agree with Brown's argument that the trial court erred in imposing lifetime postrelease supervision and, consequently, we vacate this portion of his sentence. Finally, we reaffirm the long line of cases holding that the use of a defendant's prior criminal history is not contrary to the right to a jury trial.

Ultimately, we affirm Brown's convictions, vacate the imposition of lifetime postrelease supervision and otherwise affirm his sentence, and remand the case with directions.

Facts and Procedural Background

A jury found Brown guilty of one count of aggravated indecent liberties with a child under the age of 14 and one count of lewd and lascivious behavior in the presence of a person under the age of 16. These convictions were related to conduct that occurred during the weekend of April...

To continue reading

Request your trial
165 practice notes
  • State v. Brown, No. 108,218.
    • United States
    • United States State Supreme Court of Kansas
    • July 3, 2014
    ...whether a statute creates alternative means, raise questions of law reviewable de novo on appeal.” State v. Brown, 295 Kan. 181, Syl. ¶ 6, 284 P.3d 977 (2012).Analysis In Betancourt, this court considered whether aiding and abetting was an alternative means, specifically deciding “whether t......
  • State v. Stafford, No. 103,521.
    • United States
    • United States State Supreme Court of Kansas
    • December 14, 2012
    ...1159 (2010), and State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994). As we recently noted in State v. Brown, 295 Kan. 181, Syl. ¶¶ 3–6, 284 P.3d 977 (2012), we begin our analysis of an alternative means issue by looking at the language used in the applicable statute (or in this case, statut......
  • State v. Ochs, No. 104,710.
    • United States
    • United States State Supreme Court of Kansas
    • August 16, 2013
    ...improper points, were planned or calculated, or violated well-established or unequivocal rules. State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 (2012). In determining whether prosecutorial misconduct was motivated by ill will, among the things we have considered are whether the conduct was ......
  • State v. Ortega, 106,210.
    • United States
    • United States State Supreme Court of Kansas
    • October 3, 2014
    ...alternative states of mind that a defendant must have when committing the act—the mens rea element. State v. Brown, 295 Kan. 181, 195, 284 P.3d 977 (2012). If alternatives in the statute do not state an “additional and distinct material element” but merely describe a “material element or ........
  • Request a trial to view additional results
165 cases
  • State v. Brown, No. 108,218.
    • United States
    • United States State Supreme Court of Kansas
    • July 3, 2014
    ...whether a statute creates alternative means, raise questions of law reviewable de novo on appeal.” State v. Brown, 295 Kan. 181, Syl. ¶ 6, 284 P.3d 977 (2012).Analysis In Betancourt, this court considered whether aiding and abetting was an alternative means, specifically deciding “whether t......
  • State v. Stafford, No. 103,521.
    • United States
    • United States State Supreme Court of Kansas
    • December 14, 2012
    ...1159 (2010), and State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994). As we recently noted in State v. Brown, 295 Kan. 181, Syl. ¶¶ 3–6, 284 P.3d 977 (2012), we begin our analysis of an alternative means issue by looking at the language used in the applicable statute (or in this case, statut......
  • State v. Ochs, No. 104,710.
    • United States
    • United States State Supreme Court of Kansas
    • August 16, 2013
    ...improper points, were planned or calculated, or violated well-established or unequivocal rules. State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 (2012). In determining whether prosecutorial misconduct was motivated by ill will, among the things we have considered are whether the conduct was ......
  • State v. Ortega, 106,210.
    • United States
    • United States State Supreme Court of Kansas
    • October 3, 2014
    ...alternative states of mind that a defendant must have when committing the act—the mens rea element. State v. Brown, 295 Kan. 181, 195, 284 P.3d 977 (2012). If alternatives in the statute do not state an “additional and distinct material element” but merely describe a “material element or ........
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT