State v. Cato-Perry

• Decision Date: 15 August 2014
• Docket Number: No. 104,870.,104,870.
• Citation: 50 Kan.App.2d 623,332 P.3d 191
• Parties: STATE of Kansas, Appellee/Cross-appellant, v. Quinten CATO–PERRY, Appellant/Cross-appellee.
• Court: Kansas Court of Appeals

50 Kan.App.2d 623

332 P.3d 191

STATE of Kansas, Appellee/Cross-appellant,

v.Quinten CATO–PERRY, Appellant/Cross-appellee.

No. 104,870.

Court of Appeals of Kansas.

Aug. 15, 2014.

Review Denied August 20, 2015.

Joanna Labastida, of Kansas Appellate Defender Office, for appellant/cross-appellee.

Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee/cross-appellant.

Before MALONE, C.J., HILL, J., and MICHAEL E. WARD, District Judge, assigned.

HILL, J.

After our decision in State v. Cato–Perry, 48 Kan.App.2d 92, 284 P.3d 363 (2012), rev. granted May 29, 2014, this case returns to the Court of Appeals on remand from the Kansas Supreme Court on the issue of whether a charge of acting as a principal or aider and abettor created an alternative means case. Our Supreme Court granted the State's petition for review, vacated our prior decision, and remanded this case to us to review the matter in light of State v. Betancourt, 299 Kan. 131, 322 P.3d 353 (2014), and State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014). We also consider three additional alternative means arguments and the cross-appeal by the State challenging the district court's granting of a durational departure sentence.

Because Cato–Perry committed his crime while on bond, the district court ordered him to serve the 57–month sentence consecutive to his 34–month sentence in case 07CR308. This is a durational departure sentence.

Cato–Perry made four alternative means arguments on direct appeal: (1) instructing the jury it could convict him of aggravated robbery as either a principal or an aider and abettor created alternative means upon which he could be found guilty of aggravated robbery; (2) the aiding and abetting jury instruction, in accordance with K.S.A. 21–3205(1), created six alternative means by which aggravated robbery could be committed under the aiding and abetting statute; (3) the element of taking property from the "person or presence" of the victim in the aggravated robbery instruction raises an alternative means issue; and (4) the language of taking property from the victim "by force or threat" of bodily harm to commit aggravated robbery created alternative means of committing the crime.

The first panel relied on the ruling in State v. Boyd, 46 Kan.App.2d 945, 268 P.3d 1210 (2011), overruled in part by Betancourt, 299 Kan. at 140–41, 322 P.3d 353, and reversed Cato–Perry's conviction based on his first argument. Cato–Perry, 48 Kan.App.2d at 95–96, 284 P.3d 363. Having reversed the conviction, the panel did not address Cato–Perry's remaining alternative means arguments or the State's cross-appeal. See Cato–Perry, 48 Kan.App.2d at 92–93, 95, 284 P.3d 363. Cato–Perry also has been overruled by Betancourt, 299 Kan. at 140–41, 322 P.3d 353.

In Betancourt, the Kansas Supreme Court rejected the argument that the aiding and abetting statute created an alternate means for committing first-degree murder. See 299 Kan. 131, Syl. ¶¶ 1–3, 322 P.3d 353. The court held that the aiding and abetting statute does not create an alternative means of committing the charged crime by adding distinct material elements to the definition of that crime. Instead, the aiding and abetting statute simply extends criminal responsibility to a defendant other than the principal actor. 299 Kan. at 137–40, 322 P.3d 353 ; see Soto, 299 Kan. at 109, 322 P.3d 334 (affirming Betancourt ). Through application of the ruling in Betancourt, Cato–Perry's first argument fails.

We will therefore move on to Cato–Perry's remaining three arguments.

Second alternative means argument

Cato–Perry's second alternative means argument—the six ways of aiding and abetting set out in the statute are themselves alternative means of aiding and abetting—has no merit. K.S.A. 21–3205(1), the aiding and abetting statute, states that a person is criminally responsible for a crime committed by another if such person intentionally "aids, abets, advises, hires, counsels or procures" the other person to commit the crime. Cato–Perry contends the six verbs in the statute create six alternative means. The Supreme Court in State v. Bowen, 299 Kan. 339, 352–53, 323 P.3d 853 (2014), held that any argument that the aiding and abetting statute creates multiple alternative means of committing the underlying offense is meritless in light of Betancourt. The aiding and abetting statute does not add an element to the underlying crime. See State v. Jackson, 49 Kan.App.2d 116, Syl. ¶ 4, 305 P.3d 685 (2013), rev. denied 299 Kan. –––– (May 29, 2014). Thus, we reject Cato–Perry's argument that the aiding and abetting statute in this case created alternative means problems.

Third alternative means argument

Here, Cato–Perry contends the aggravated robbery jury instruction created an alternative means issue because it required the State to prove he took property from the victim's "person or presence." Cato–Perry does not dispute that the State presented sufficient evidence to prove that he took property from the victim's presence, but he argues the State failed to present sufficient evidence that a taking occurred from the victim's person. He relies on State v. Robinson, 27 Kan.App.2d 724, 728, 8 P.3d 51 (2000), which held that "[p]ersonal property can be taken from a victim's ‘presence’ without being taken from his or her ‘person,’ but it cannot be taken from his or her ‘person’ without being taken in his or her ‘presence.’ "

Cato–Perry's reliance on Robinson is misplaced. Because Robinson only concerned a sufficiency of the evidence analysis as applied to the defendant's alleged jury instruction error, not an alternative means analysis, it does not apply here. See Jackson, 49 Kan.App.2d at 134–35, 305 P.3d 685. More importantly, the lack of evidence that Cato–Perry took property from the victim's person does not require reversal of the conviction if "person" and "presence" are not alternative means under K.S.A. 21–3426 and K.S.A. 21–3427. See State v. Wright, 290 Kan. 194, 203, 224 P.3d 1159 (2010).

In Boyd, this court held that the language of "taking property from the person or the presence" of the victim does not create alternative means under K.S.A. 21–3427. 46 Kan.App.2d at 950–51, 268 P.3d 1210. In doing so, the Boyd panel noted that some degree of redundancy may be tolerated in the criminal code to enhance the objective of giving fair notice of the proscribed conduct and stated:

"The essence of the crime is forcibly taking property when a person is present. The term ‘from the person or the presence’ of the victim describes the proximity of the property and the individual. It does so with phraseology that overlaps. Taking property from the presence of the victim (who need not be the owner of whatever the perpetrator seizes) describes an area in the general vicinity of the victim. Taking property from the person of the victim refers to the immediate environs of the body such as a pocket, a purse, or the hands. Thus, a taking ‘from the person’ is actually encompassed within a taking ‘from the presence’ of the victim. The robbery and aggravated robbery statutes would criminalize the same range of conduct even if the phrase ‘the person’ had been omitted from the definitions of those crimes." 46 Kan.App.2d at 950, 268 P.3d 1210.

This court in Jackson recently agreed that the Boyd court's analysis of "person or presence" comports with Brown, which was decided after Boyd. Jackson, 49 Kan.App.2d at 134, 305 P.3d 685. The panel in Jackson held that "[t]he use of ‘person or presence’ describes the victim's proximity to the property taken. When conducting the Brown analysis on this point, it is apparent that the two words are simply two options used to describe different factual circumstances in which aggravated robbery (or robbery) can occur." 49 Kan.App.2d at 135, 305 P.3d 685. In addition to Jackson, 49 Kan.App.2d 116, Syl. ¶ 5, 305 P.3d 685, several other panels have agreed with the Boyd court's analysis of "person or presence" to hold that the phrase does not create an alternative means of committing the crime of aggravated robbery. See State v. Edwards, 48 Kan.App.2d 383, Syl. ¶ 5, 290 P.3d 661 (2012), aff'd 299 Kan. ––––, 327 P.3d 469, 476 (2014) ; State v. Moore, No. 106,209, 2013 WL 1010284, at *3–4 (Kan.App.2013) (unpublished opinion), rev. denied 297 Kan. 1253 (2013); State v. Suady, No. 105,603, 2012 WL 6734503, at *5 (Kan.App.2012) (unpublished opinion), aff'd in part, rev'd in part, and remanded 299 Kan. ––––, 327 P.3d 466, 468 (2014) ; State v. Delacruz, No. 106,082, 2012 WL 1352865, at *4–5 (Kan.App.2012) (unpublished opinion), rev. denied 299 Kan. –––– (May 29, 2014). Similarly, we see no reason to disagree with the Boyd panel's conclusion that the phrase "person or presence" in the aggravated robbery statute does not create an alternative means of committing the crime; rather, it describes the proximity of the victim to the property taken.

Fourth alternative means argument

Cato–Perry's fourth alternative means argument refers to that part of the instruction requiring that the jury find "[t]hat the taking was by force or threat of bodily harm " to the victim. (Emphasis added.) He relies on State v. Reed, 45 Kan.App.2d 372, 384–86, 247 P.3d 1074, rev. denied 292 Kan. 968 (2011), where this court found sufficient evidence existed of both force and threat for each alternative means of aggravated robbery. Cato–Perry argues that the State presented no evidence that he took the money from the victim by threat of bodily harm.

We are not persuaded this language creates an alternative means issue.

Brown teaches us that statutory language describing "options within a means" or the "factual circumstances" which prove the underlying crime do not raise an alternative means issue. 295 Kan. 181, Syl. ¶¶ 10–11, 284 P.3d 977. K.S.A. 21–3426 defines robbery as "the taking of property from the person or presence of another by force or by threat of bodily harm to any...